Wednesday, April 15, 2020

From Around the Blogs, Part 1

1.  On Sufficient Description, Norman Siebrasse published a post titled Market Share Expert Not Required for Market Share Damages Analysis.  The post discusses a recent (Canadian) Federal Court of Appeal case, DNOW Canada ULC v. Estate Grenke, 2020 FCA 61, which concludes that the patent owner could recover market share damages based on testimony from a witness who is neither an accountant nor an economist, but who is knowledgeable about the relevant industry.  The court also affirms the general principle that the prevailing patent owner can recover its lost profits on lost sales of convoyed goods, but concludes that the evidence here was insufficient to establish the necessary causal link.

In a subsequent post, Professor Siebrasse discusses Evolution Technologies Inc v Human Care Canada Inc 2019 FCA 11, in which the Federal Court of Appeal granted a stay of judgment pending appeal.  Applying the Cyanamid factors, the court concludes that the defendant faced irreparable harm if it were required to pay the judgment and be excluded from the market pending appeal.  The balance of convenience factor therefore also favored the defendant.  The decision was only recently published; and, as it turns out, the defendant actually did succeed on appeal.

2.  On Law360, Brian Johnson published an article titled Asserting RAND Defenses at the ITC: 3 Common Pitfalls.  Mr. Johnson states that "Reasonable and nondiscriminatory defenses at the U.S. International Trade Commission have always been rocky territory, but perhaps never more than they are now."  He discusses "three pitfalls for respondents to avoid," namely forfeiting the ability to assert a RAND defense, failing to demonstrate that RAND agreements are enforceable, and failing to show that the patents in suit are essential. 

3.  Also on Law360, Greg Schodde and Amber Carpenter published an article titled Strategies for Discouraging Nuisance Patent Suits. The authors argue that courts should consider steps to discourage nuisance suits by PAEs, including greater use of fee shifting, expedited hearings on dispositive issues such as claim construction, and centralized multidistrict consolidation.

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