Monday, January 27, 2020

Some More Commentary on Germany's Proposed Amendment to Its Patent Law

1. Matthew Bultman has published a piece on Bloomberg News titled Pressure Grows to Stop Automatic Product Bans in EU Patent Rows.  The article quotes several commentators, including me, on the proposal to delay the entry of injunctive relief "when it would be disproportionate and cause unjustified harm," and to close the "injunction gap" by requiring the Patent Court to render a preliminary assessment of validity within six months.

2. Matthieu Klos has published a piece on JUVE Patent, titled No hot air: industry considers German bifurcation update, which quotes a range of commentators arguing variously that the proposal goes too far, doesn't go far enough, or is just right.  On the "goes too far" end of the spectrum is one commentator who argues that the current system works because "the feared shutdown of entire production lines due to the patent infringement of a product part practically never occurs."  The obvious response is that, just because implementers find it in their interest to pay a royalty to avoid shutdown doesn't mean that the royalty is proportionate to the value of the invention.  In fact, there's every reason to think that the threat of an injunction ex post will cause an implementer to pay an excessive royalty, which is good for neither consumers nor innovation.  That's the patent holdup concept in a nutshell. 

3.  Florian Mueller, who is clearly of the "doesn't go far enough" view, published a third post on the amendment on FOSS Patents, titled Without eBay factor #2, German patent reform movement is left with nothing but Kremlinology, spin, and self-delusion: licensing vs. injunction.  He calls attention to the fact that neither the proposed amendment nor the Ministry's rationale for it discusses "the second eBay v. MercExchange factor: the requirement for an injunction that monetary relief (= a damages award) be 'inadequate' to make the patentee whole. That includes, but is not limited to, the intrinsic value of the invention at issue and its relevance to the accused product."

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