Wednesday, April 23, 2014

Some new papers and blog posts on FRAND royalties, injunctions

1.  Dan Prud'homme has published a paper titled FRAND and Other Requirements in China's Announcement on Releasing (Provisional) Administration Regulations of National Standards Involving Patents in the May 2014 issue of the Journal of Intellectual Property Law and Practice (JIPLP).  The article is available here.  Here is the abstract:
New measures took effect on 1 January 2014 governing national standards involving patents in China. These measures have noteworthy implications for businesses, given that they include reporting requirements that add to uncertainty and therefore the risk of non-compliance; they include other clearer reporting requirements that raise compliance costs; they specify parameters of patent licensing, including FRAND terms, for voluntary national standards; they allow discretion in determining the necessity of suspending and revising voluntary national standards when patent licensing arrangements are not finalized; they mandate patent licensing for compulsory national standards and also provide some transparency in national standards development and reporting.
2.  Amanda Ma reported on the China IPR Blog this past weekend that the Guangdong High Court has made available online a redacted version of its appellate decision in the Huawei-InterDigital FRAND royalties/antitrust case.  The decision is in Chinese, though I imagine someone will be motivated to publish an English-language translation before too long.  For my previous blog posts on this case, see here, here, and here

3.  And while we're on the topic of the Huawei-InterDigital dispute, here's an article about it that I missed:  Michael Han & Kexin Li, Huawei v. InterDigital: China at the Crossroads of Antitrust and Intellectual Property, Competition and Innovation, CPI, Nov. 28, 2013.  Here is the introduction, by CPI Asia Column editor Vanessa Yanhua Zhang:
As interaction between the Anti-Monopoly Law (AML) and intellectual property right (IPR) becomes center of debates worldwide, China has also geared up in the AML enforcement involving IPR. No matter private litigation or agency investigation, people would like to understand the nuts and bolts of how Chinese authorities take charge of the cases. In this month’s Asia Column, we have an insightful article which sheds some light on this issue. Enjoy reading and have a nice holiday season!
4.  The May issue of JIPLP referenced above also has a short article by Gary Moss titled HTC v Nokia: In the United Kingdom will an injunction be granted following a finding of patent infringement?, available here.  Here is the abstract:
In this action Mr Justice Arnold granted a final injunction restraining HTC from continuing to sell products which he had previously determined infringed Nokia’s patent. In doing so, he clarified the test to be applied when considering whether to grant a final injunction in patent cases.
I also blogged about this case in December, here.  JIPLP also has a short article (also available on the JIPLP Blog) by Paul Keller and Annsley Merelle Ward on the Federal Circuit's recent Kilopass decision on attorneys' fees, which I also blogged about here in January.

5.   Anne Layne-Farrar had posted a paper on ssrn titled Proactive or Reactive?  An Empirical Assessment of IPR Policy Revisions in the Wake of Antitrust Actions, which I downloaded from Danny Sokol's Antitrust & Competition Blog in late March.  The paper no longer appears to be on ssrn, but I'd recommend taking a look at it when it returns.  Here is the abstract:
The debate over potential antitrust concerns for the use of protected intellectual property within standard setting often centers on the rules and regulations in place at Standard Setting Organizations (SSOs). While the typical focus is on whether or not particular rules should be mandated for SSOs, this debate begs a broader question: what are SSOs doing, of their members’ own volition, to address apparent antitrust gaps or weaknesses within their IPR rules? This paper systematically assesses what SSOs have actually done (or failed to do) in relation to antitrust concerns, as those concerns emerge over time.
6. Finally, the EPLaw Blog published a brief post last month on Ajinomoto v. Global Bio-Chem Technology, a Dutch case in which the court reportedly assessed a 1,000 euro per kilogram penalty for the defendant's continued shipment of infringing lysine into the Netherlands following entry of judgment against it.  As of today, the blog appears to be down, but I hope that is corrected soon.

Update:  As of this morning, the EPLaw Blog is back.  Here is the link to the post on Ajinomoto.

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