Wednesday, April 25, 2018

More News on IPRs; Lost Profits in the U.S.; Punitive Damages in China

1.  Yesterday's Supreme Court decisions in Oil States and SAS have garnered, predictably, a good deal of coverage in the media and blogosphere, including articles in the Wall Street Journal and New York Times, and posts on IAM, IP Watchdog, Scotus Blog, and SpicyIP.  There also are detailed commentaries on SAS on FOSS Patents, Patently-O, and Patents Post-Grant.  For my blog post from yesterday, see here.

2.  On Monday, the U.S. Supreme Court requested the views of the Solicitor General of the United States on whether to grant certiorari in EVE-USA, Inc. v. Mentor Graphics Corp., a case I have previously blogged about (see, e.g, here and here).  The petitioner raises two questions, to wit:
(1) Whether, and under what circumstances, assignors and their privies are free to contest a patent's validity; and (2) whether the U.S. Court of Appeals for the Federal Circuit erred in holding that proof of but-for causation, without more, satisfies the requirement that damages be apportioned between patented and un-patented features.
I joined an amicus brief arguing that the Court should grant cert on the assignor estoppel issue (which in my view the Federal Circuit has unduly expanded in recent years).  As for the lost profits issue, however, as my blog posts indicate I think the Federal Circuit's decision was correct.  I also tend to think the SG would agree, given its position in WesternGeco that patent damages generally should be fully compensatory (see here), but we'll see.  Here's a link to Scotus Blog's webpage on the case, from which you can download the briefs filed thus far in the case.  For further discussion, see write-ups by Jan Wolfe on Reuters and by Dennis Crouch on Patently-O.
3.  Also on Monday Roya Ghafele published an interesting post on IPKat titled "China to adopt punitive damages for IP infringement – An economic commentary."  The author devotes much of the post to the argument that Chinese courts should (1) adopt an eBay-like standard for granting injunctions, but (2) couple that standard with a more economically-rooted approach to properly valuing inventions, given the widespread view that damages in China at present tend to be undercompensatory.

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