Friday, January 17, 2020

More Commentary on the German Ministry's Proposed Amendment

1.  Léon Dijkman has published a post on IPKat titled Patent Injunctions Update: German Ministry of Justice publishes draft amendment to Patent Act and Hague Court of Appeal decides in further Philips FRAND cases.  The post discusses the German Ministry's proposed amendments, including a translation of the new sentence to be added to section 139 that reads better than my translation of it.  The author's take is generally positive, stating that "It will now be up to lawyers and scholars to argue which cases warrant application, and for courts to further crystallize this young but crucially important doctrinal exception to patent exclusivity – but first let's see how the proposal will fare" (emphasis in original).  

The post also discusses two recent decisions out of the Netherlands on the Philips v. ASUS and Wiko FRAND litigation. 

2. Expressing a very different perspective is Florian Mueller, who blogged about the proposed amendment earlier this week and remains highly critical of the draft in his new post titled Proportionality clause in draft German patent reform bill falls short of not only eBay v. MercExchange but also the EU's definition.  (Mr. Mueller also provides a more fluent translation of the sentence in question that the one I produced the other day.)  I certainly agree that "the German statute falls far short of eBay v. MercExchange."  Mr. Mueller also presents an interesting argument, as the title of the post suggests, that the amendment might not conform to E.U. law either (a matter on which, however, I do not at present feel confident enough to express an opinion).  
3.  Meanwhile, IP2Innovate has sent this letter to the European Commission, with the heading "Industry Calls on New Commission to Issue Guidelines to Support Homogeneous and Effective Application of Proportionality in Patent Enforcement."  The letter does not address the proposed German amendment specifically, but (as the heading indicates) "call[s] on the Commission to work with Member States, judges and stakeholders to publish targeted guidelines to support the homogenous and effective application of proportionality in patent enforcement."  These would include "a list of factors that courts should consider in deciding whether to issue a permanent injunction or grant an alternative remedy and guidance on how those factors might apply in different scenarios."
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For my two posts earlier this week on the proposed amendment, see here and here.

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