Friday, April 17, 2020

From Around the Blogs, Part 2

1.  On IPKat, Marie Barani published a post titled Sisvel v. Sun Cupid: a Dutch SEP injunction absent any counterclaim.  Apparently the defendant put up no defense, not even sending a lawyer to the hearing.   Ms. Barani concludes "Given the lack of evidence in support of a number of the claims made by Sisvel (and the lack of defence from the defendants), the decision seems quite favourable to the patent-holder: the finding of infringement is based only on the standard implementation, it provides for the notification, recall and destruction of products (subject to certain limits) and gave the patent owner the election as to how to calculate damages."

2.  On IP Watchdog, McCord Rayburn published a post titled Your Licensees' Patent Marking Program Is Also Your Concern.  The post discusses the Federal Circuit's recent decision in Arctic Cat Inc. v. Bombardier, in which the court held that the patent owner could not recover damages for a period of time during which its licensee did not mark the patented articles it was licensed to make.  Mr. Rayburn provides some helpful advice to patent owners, including ensuring that one's licensees are marking products by including such an obligation in the license agreement, and monitoring licensee conduct. 

For my post on the Arctic Cat decision, see here.  For Dennis Crouch's take on the case, in which he argues (citing a law review article by Michael McKeon) that it actually may be inconsistent with a very old Supreme Court decision on marking, see here.

3.  On Sufficient Description, Norman Siebrasse published a post this morning titled The “Would Have” Branch of the Non-Infringing Alternative Analysis.  The post discusses the question of how to determine whether a proposed noninfringing alternative (NIA) should count, for purposes of calculating patent damages.  The Canadian courts follow what might be described as a "could" and "would" approach which focuses both on whether the NIA could have been available and whether the infringer would have resorted to it.  The latter question in turn raises the issue of whether the infringer's non-economic motivations for avoiding the alternative should matter.  Professor Siebrasse argues they should not, and I agree.     

4.  Finally, on the Kluwer Patent Blog, Jonathan Ross published a post titled   The post discusses a recent decision of the Court of Appeal for England and Wales affirming the denial of a motion to dismiss an action for  an Arrow declaration.  Specifically, according to the opinion, "Mexichem wishes to be free to market [refrigerants] ze and yf in the UK for use in MACs [mobile air-conditioning systems].  In addition to seeking to revoke the six patents in suit, Mexichem is also concerned that Honeywell has at least four other divisional patent applications in the pipeline undergoing examination in the European Patent Office.  In order to protect itself against the possible impact of the grant of patents in the future on those further applications, Mexichem has sought declaratory relief aimed at establishing that the mere idea of using ze or yf in a MAC was obvious at particular dates." For previous mention of Arrow declarations on this blog, see, e.g., here and here.  One of these days, however, I should devote more sustained attention to this topic, which appears to be quite distinct from declaratory judgments in the U.S.

No comments:

Post a Comment