Monday, May 18, 2020

From Around the Blogs

1.  On Sufficient Description, Norman Siebrasse has published two posts (here and here) discussing a decision of Canada's Federal Court in Fluid Energy Group Ltd. v. Exaltexx Inc., [2020] FC 81.  The decision awarded Exaltexx a preliminary injunction prohibiting Fluid from threatening to bring infringement actions against end users of Exaltexx's "safe acid" products.  According to Professor Siebrasse, the decision provides a good overview of both the law of preliminary injunctions and of product disparagement under Canadian law.  On the latter issue, the court distinguishes between "informative" and "threatening" cease and desist letters, with the latter posing a risk that the recipient will comply with the sender's demands simply to avoid litigation.

2.  Matt Swinn has published a post on IPKat titled Australian government fails to recoup clopidogrel costs from Sanofi.  The post discusses a recent decision from the Federal Court of Australia,  Commonwealth of Australia v. Sanofi [2020] FCA 543, dismissing a claim made by the Australian government for compensation from the drug maker Sanofi.  Under Australia's Pharmaceutical Benefits Scheme, the government subsidized the price paid for Sanofi's Plavix drug.  Sanofi had obtained an interlocutory injunction restraining Apotex from entering the market with its generic version of the drug.  The relevant patent was later revoked, however, and Sanofi and Apotex settled Apotex's claim for compensation.  The government also sought compensation, but it was unable to prove that (1) Apotex would have entered the market at risk and applied to list its generic product, and (2) the government's loss was caused by the interlocutory injunction.   

3.  On Law360, Laurie Stempler and Dominic Persechini have published the first two of a three-part series on How Licensing Affects Patent Damages Apportionment (here and here).  The series proposes "best practices for considering the apportionment aspect of prior license agreements in a reasonable royalty analysis," with the first two installments discussing legal and economic considerations and providing advice relating to discovery and preparation of expert testimony.

4.  Also on Law360, Gregory Williams and Dominique Carroll published an article titled High Court TM Profit Ruling May Not Wreak Havoc in 3rd Circ.  The authors predict that the Supreme Court's recent decision in Romag (of which I have been highly critical, see here) "likely will not lead to a flood of meritless trademark infringement litigation or a significant increase in the frequency of the awarding of the infringers' profits to prevailing plaintiffs in trademark infringement litigation," at least not within the Third Circuit.

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