1. Dennis Crouch has published a couple of
short posts recently of interest to the patent remedies community. Earlier
this week, he published a post titled A Book of
Wisdom, regarding the Federal Circuit's denial without opinion of a
petition for rehearing en banc in Alfred E. Mann Foundation & Advanced
Bionics v. Cochlear Corp. As Professor Crouch explains, the district
court awarded the plaintiff $268 million in damages. The petition for
rehearing en banc takes issue with the lower court's application of the
"Book of Wisdom," which allows the trier of fact to take into account
ex post information in estimating the ex ante royalty the parties would have
negotiated. Professor Crouch expects there will be a petition for
certiorari. Norman Siebrasse and I discussed the Book of Wisdom in our
article A New Framework for Determining Reasonable Royalties in Patent
Litigation, 68 Fla. L. Rev.
929 (2017); see also the chapter titled Reasonable Royalties,
pp. 28-33, in Patent Remedies and Complex Products:
Toward a Global Consensus 6, 41–46 (Brad Biddle et al. eds. 2019).
Professor Crouch also noted
recently that TCL has filed a petition for certiorari in the TCL v.
Ericsson dispute, posing the question "Whether a patent owner
required to license its standard-essential patents on fair, reasonable, and
nondiscriminatory terms has a Seventh Amendment right to a jury trial in a
proceeding seeking the equitable relief of specific performance."
Readers may recall that the Federal Circuit late last year reversed Judge Selna
and held that Ericsson had a right to trial by jury; for my previous post, see here.
Law360 also has an article on the cert. petition here,
and the Scotus Blog page can be found here.
2. John LeRoy has published an article on
Law360 titled A
Musical Solution for Negotiating Wireless FRAND Rates. The
article discusses, among other things, the debate over license-to-all versus
access-to-all, and argues that Congress should (1) establish a tribunal,
similar to the Copyright Royalty Board, to determine FRAND rates, and (2)
authorize the USPTO to make a preliminary determination whether the claims of
an issued patent read on a standard. As I have noted
previously, Professor Jorge Contreras also has proposed a FRAND
rate-setting tribunal modeled on the Copyright Royalty Board in his article Global
Rate Setting: A Solution for Standard-Essential Patents?, 94 Wash. L.
Rev. 701 (2019).
While on the
subject of copyright, but the way, I've been enjoying Gary Rosen's recent book Adventures
of a Jazz Age Lawyer: Nathan
Burkan and the Making of American Popular Culture (U. Cal. Press
2020). Rosen's earlier book, Unfair
to Genius: The Strange and Litigious Career of Ira B. Arnstein (Oxford
Univ. Press 2012) was terrific too.
3. Actions Against the Threat of Patent Infringement.
Noting that TRIPS article 50.7 states that "Where the provisional measures
are revoked or where they lapse due to any act or omission by the applicant, or
where it is subsequently found that there has been no infringement
or threat of infringement of an intellectual property right, the judicial
authorities shall have the authority to order the applicant, upon request of
the defendant, to provide the defendant appropriate compensation for any injury
caused by these measures,” Sr. presupposes that the array of remedies
available to the patent owner is not limited to legal actions for patent
infringement. Quite the contrary; they include legal actions against mere
'threats of infringement.'" If I understand correctly, Sr. article 9(a) of the E.C. Intellectual Property
Rights Enforcement Directive, which states inter alia that "Member
States shall ensure that the judicial authorities may, at the request of the
applicant . . . issue against the alleged infringer an interlocutory injunction
intended to prevent any imminent infringement of an intellectual property
right," is at odds with this provision of TRIPS, since it only requires
member states to issue preliminary injunctions based on "imminent"
infringement.
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