Monday, July 6, 2020

From Around the Blogs

1. IPKat published a post by Alain Strowel and Amandine Léonard titled How to Deal with Abusive Patent Enforcement Within the EU Enforcement Framework.  The authors argue that, in view of "a sharp rise in the number of patents applied for in Europe" and the "increased activity of aggressive Patent Assertion Entities (PAEs)," "courts in Europe (and, in particular, German courts) should infuse more flexibility into the ways that patent enforcement claims are considered."  They call particular attention to proportionality under article 3(2) of the IP Enforcement Directive, and the "abuse of right" doctrine under civil law.

The authors have previously published a somewhat more extended treatment of this topic in their article Cutting Back Patent Over-Enforcement – How to Address Abusive Practices Within the EU Enforcement Framework, JIPITEC–Journal of Intellectual Property, Information Technology and E-Commerce Law 11(1) 2020.

2.  Also on IPKat, Léon Dijkman published a post titled Neurim v. Mylan:  UK Court of Appeal denies interim injunction in face of a launch-at-risk, but are damages really adequate?  The post discusses a recent decision of the Court of Appeal affirming the denial of an interim injunction against a generic drug company that launched at risk, on the ground that damages would be an adequate remedy.  The author states that the decision is notable because it had become expected that U.K. courts would "readily grant interim injunctions if the generic entrant does not first seek to invalidate the patent," as in this case.  Link to the Court of Appeal's decision here.

Brian Cordery and Rachel Mumby also published a post on this case on the Kluwer Patent Blog, titled A wake-up call for patentees?, in which they poses several questions about the implications of the decision, and notes that at a later proceeding the court awarded Mylan 65% of its costs.   

3.  On the Kluwer Patent Blog, Roberto A. Jacchia has published a post titled Italian Court of Appeals awards EUR 1,5 mio damages in pharma patent case for 40 days infringement.  The post discusses a decision in a case filed by Merck Sharp & Dohme against Teva.  The author describes the case as "a considerable success for MSD for several reasons," but is critical of some of the court's reasoning, asking why "loss of margins caused by the decrease in the medicine's reimbursed price triggered by generic entry should be capable of compensation, whereas loss of margins caused by loss of volumes" or "loss of depreciation" should not. 

4.  On Law360, James Donohue and Marie Minasi published an article titled When Is the Hypothetical Negotiation for Patent Damages?   Noting that U.S. courts often determine reasonable royalties using a construct that "envisions a hypothetical negotiation at the time of first infringement," the authors state that "the analysis can be complicated by many factors," and that "[w]hich products are accused, covenants not to sue, license expirations, corporate transactions, assignments, asserting multiple patents, product development and testing, importing, and various other situations can all influence the date of first infringement."  For a somewhat different take on this issue, see pages 28-30 of the Reasonable Royalties chapter that my coauthors and I published in Patent Remedies for Complex Products:  Toward a Global Consensus (Cambridge Univ. Press 2019).

Law360 also recently published the third and final installment of Laurie Stempler and Dominic Persechini's series How Licensing Affects Patent Damages Apportionment.  For previous mention of the first two parts, see here.  The third part focuses on how the litigant's technical expert "can help protect the damages expert's opinion from exclusion."

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