Monday, September 18, 2017

Some Recent Commentary on Unjustified Threats, Cross-Border Injunctions, Arrow Declarations

1.  Perhaps next year will be the year in which I begin work on a projected book on the comparative law and economics of wrongful patent enforcement--a topic that raises all manner of interesting policy and legal questions (potentially involving IP, antitrust, unfair competition, and even freedom of speech and related constitutional rights).  Meanwhile I continue to fortify my research file on the subject, which now includes the newly amended U.K. statute on the subject (available here), which is usefully summarized in a recent IPKat post here.  (See also this IPKat post from last December, on a 2016 case involving the U.K.'s then-existing "groundless threats" law, Nvidia v. Hardware Labs.)  In addition, Norman Siebrasse published a couple of interesting posts on the Canadian law of unjustified threats last November (here and here), raising the questions of whether (as under common law, but not current Canadian statutory law) there should be a "malice" requirement (as there usually is, in a sense, in U.S. law) and whether it makes any sense to distinguish threatening letter from informative letters.  Finally, a more recent IPKat post and an EPLaw Patent Blog post both discuss a recent English case on the question of whether making allegedly deceitful representations to the EPO could give rise to a claim for "unlawful means" under English law (and holding that it could not).  The (unsuccessful) claim calls to mind various possible parallels under U.S. law, including the defense of inequitable conduct, Walker Process antitrust claims, and the common law tort of interference with prospective business advantage.  I really think this would be a fascinating area for comparative law and economics research, so I'm hoping that once a few other pending projects are finally put to bed I might be able to resume work on this topic.

2.  Occasionally I've also touched on cross-border injunctions and torpedo actions under E.U. law (see, e.g., here).  According to the EPLaw Blog, a Dutch court recently granted a provisional cross- border injunction in Carl Zeiss Meditec AG v. VSY Biotechnology B.V.  (I haven't read the decision itself, which is in Dutch.)  However, I did recently come across a very thorough article on the topic of cross-border injunctions by Paul England, titled Cross-border actions in the CJEU and English Patents Court--ten years on from GAT v. LuK, GRUR Int., March 2017 (pp. 293-300).  The article concludes with a handy table titled "The application of the Brussels Regulation and key cases to cross-border scenarios in the CJEU and English courts," and briefly discusses, among other matters, whether a court in the U.K. would grant an "Arrow" declaration in the U.K. under foreign national laws (see pp. 299, 300).  (For other recent discussions of Arrow declarations in the U.K., see, e.g., this post and this post from IPKat; Ralph Cox & Kate Donald's article in the June 2017 issue of Mitteilungen der deutschen Patentanwälten (pp. 260-61), titled Dealing with Divisionals:  "Arrow" type declarations and the "Humira" decisions; and Dr. Manuel Kunst and Dr. Janet Streth's article in the August issue of EIPR, titled Humira Patent Rights Shot by "Fujifilm" Declaration.)  

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