Monday, February 23, 2015

Larouche and Zingales on Injunctions and Standard Essential Patents

Pierre Larouche and Nicolo Zingales have published a paper titled Injunctive Relief in Disputes Related to Standard-Essential Patents: Time for the CJEU to Set Fair and Reasonable Presumptions in 10 European Competition Law Journal 551 (2014).  Here is a link to the paper (there is also a version on ssrn here), and here is the abstract:
Should injunctive relief be available to the holder of a Standard-Essential Patent (SEP) which committed to license on fair, reasonable and non-discriminatory (FRAND) terms, in order to prevent a third-party implementer from practicing a standard reading on that SEP, when that implementer is willing to take a license but the parties disagree on the terms of the license? This paper focuses on the peculiar European dimension of this debate. It examines how Directive 2004/48 on the enforcement of intellectual property rights, while topical, has been implemented and applied in diverging ways across leading Member States. EU competition law can be used fill in that harmonization gap. The paper reviews the recent Motorola and Samsung decisions of the Commission, and sets out the issues in Huawei v. ZTE, now pending before the Court of Justice of the European Union (CJEU). The CJEU should be aware of the broader role and impact of EU competition law in these matters, and should seek to use its impending judgment to set the right presumptions for the application of competition law in SEP disputes involving FRAND commitments. 
Although I ultimately disagree with some of the authors' conclusions (among them that holdup is "exceptional"), the paper is quite interesting, in particular for its discussion of the conditions for obtaining permanent and preliminary injunctions in England, Italy, France, Germany, and the Netherlands.  Given some differences among these jurisdictions regarding the conditions under which injunctive relief is appropriate, the authors argue that using European competition law to address the question of when SEP owners may seek injunctions may help to harmonize the approach to this question.  I'll have to give this some more thought; it is an issue that had not occurred to me in my previous musings on the advantages of applying competition law versus the law of patent remedies to this question.  

I also appreciate the authors' cite to this post from the blog (see p.573 n.108), although I think they may be confusing me with the eminent Professor Thomas Cottier, an international IP scholar at the University of Bern.  (It's happened before, and Professor Cottier is a highly esteemed scholar, so I don't mind.)  To date, I don't think I've been confused with this Thomas Cotter, who appears to be doing great work in biochemistry; or with this fellow, though I understand he's pretty funny.

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