Thursday, April 6, 2017

Some Upcoming Events on Remedies

1. The IP Chat Channel will broadcast a webinar titled Settlement Agreements as Comparables:  New Comprehensive Analysis from the Federal Circuit, on Thursday, April 20, at 2 p.m. Eastern Time.   Here is a link to the website, if you're interested in registering, and here is a description: 
Last month, Federal Circuit Judge Taranto, writing for a unanimous panel, laid out a complete road map to the admissibility of settlements in patent infringement litigation. That detailed opinion, Prism v. Sprint, is likely to put an end to the seven-year unsettled period that has followed the Federal Circuit decision in ResQNet v Lansa. That 2010 opinion upset case law reaching back to 1889 that rarely deemed settlement agreements admissible in patent infringement litigation. ResQNet asserted, to the contrary, that "the most reliable license in this record arose out of litigation." Since then, district courts have tended to follow their own inclinations on the issue, with some assessing the admissibility of settlements in a fact-dependent case-by-case analysis, and others remaining more inclined to exclude settlements.
In Prism, the Federal Circuit lays out a detailed scheme for the balancing act required under Rule 403, whereby a district court "may exclude relevant evidence if its probative value is substantially out-weighed" by such dangers as unfair prejudice and misleading the jury. The opinion addresses such issues as:
What evidence is needed to show value of the asserted patents when the old settlement covers more than the patents in the present controversy;
How the timing of the settlement of an earlier dispute affects its probative value, with, e.g. a settlement late in trial meaning the record was more fully developed; and
How settlements are not that different from licenses, because "the potential for litigation ... must loom over patent licenses generally, including those signed without any suit ever being filed."
Our panel, which includes two litigators and a damages expert, will discuss how to best leverage Prism to keep settlements both in and out of evidence.
Panelists are Stephen Holzen, Samuel Walling, and Karen Weil.  For my blog post on Prism, see here.

2.  The 25th Annual Fordham IP Conference will be held April 19-21 at Fordham Law School in New York.  Here is a link to the event's webpage, and here is a link to a draft of the program. A more detailed program is promised shortly.  I'm sure that the topic of patent remedies will come up in one form or or another in several sessions, but the draft program indicates that there will be a session specifically on IP Remedies on Thursday, April 20 at 5:15 p.m., and another on FRAND/Standard Essential Patents on Friday, April 21 at 11:45 a.m.

3.  AIPLA is holding its Spring 2017 Annual Meeting in San Diego from May 17-19.  Here is a link to the webpage, and here is link to the program preview.  The 9 a.m. Patent Litigation Session on Wednesday, May 17 will include presentations on "Importing Inducement: Obtaining Exclusion Orders Based on Post-Importation Patent Infringement," "Leveraging the Situs of the Sale to Increase Patent Infringement Damages: A Look into the Future after the Carnegie Mellon Case," and a panel titled  "Trending in IP: Design Patent Update and Tips for Avoiding (or Obtaining) Enhancements of Patent Infringement Damages."  In the afternoon, there will be a 2 p.m. session titled "Non-Monetary Relief for Trademark Infringement," and a 3:30 p.m. session titled "Antitrust Law/IP Transactions/Standards & Open Source" that will focus on FRAND issues in the U.S., Asia, and Europe.  On Thursday, May 18, there will be a  9 a.m. session on trade secrets that will cover, among other things, "Ex Parte Seizures and Injunctions: Best Practices for Effectively Using the DTSA’s Provisions on Equitable Remedies."

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In other news, I'm hoping to get through Justice Birss's opinion in Unwired Planet v. Huawei (see yesterday's post here) and to blog about it sometime soon.  Meanwhile, on the China Patent Blog there's a guest post by Austin Chang on the Chinese IWNCOMM v. Sony case that I blogged about recently (here, here, and here).  Readers interested in FRAND/SEP issues will want to check it out.

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