Friday, April 12, 2019

From Around the Blogs

1. Last month on IPKat, Eleonora Rosati published a post by Paola De Donato titled Patent infringement and recovery of profits in Italy:  doctrine of equivalence and requirement of negligence, discussing a decision of the Tribunale di Genova on damages and recovery of profits.  Here is a link to the post, and here is a link to the original decision.  Long story short, the court concludes that the plaintiff is entitled to recover from the principal defendant its actual damages, consisting of certain expenses incurred to investigate and try to settle the dispute, etc. (apparently a distinct item from the recovery of litigation costs, which are also awarded), and the disgorgement of the defendant's profits.  However, the court denies the recovery of damages against two other defendants who were neither negligent nor willful infringers (being the importer, distributor, and retailer of the accused product in Italy).

For brief discussion of the relation between fault or state of mind and remedies in certain countries, see my book Comparative Patent Remedies pp. 245, 256-57, 308-09, 354.  The position articulated by the Italian court seems similar to the position of the courts of France.  See also INPRECOMP's discussion of this topic here (pp. 14-19).

2. In February, Norman Siebrasse published a post on Sufficient Description titled Airbus v. Bell Punitive Damages Award Upheld.  The post discusses a recent decision of Canada's Federal Court of Appeal affirming this judgment from 2017, which awarded Can.$1,000,000 in punitive damages (twice the amount of the actual damages).  No surprises in the judgment itself, but seeing how uncommon it is for courts outside the U.S. to award punitive or enhanced damages for patent infringement, it is significant.  For previous mention of the trial court decision on this blog, see here.

3.  In addition to his thorough coverage of the Qualcomm litigation in the U.S. and Germany, Florian Mueller published an interesting post on FOSS Patents a few months ago titled When defending against standard-essential patents, beware of standard-essential utility models.  (For previous discussion on this blog of utility models, see, e.g., here.)  The post raises, among other things, an interesting question about the scope of antisuit injunctions, namely whether an injunction (issued, say, in the U.S.) against enforcement of a patent in another country would cover an attempt to cover a utility model derived from a patent application.  Perhaps it would be advisable, for companies seeking such injunctions, to ensure that their scope is as clear as possible up front.

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