Monday, September 21, 2020

From Around the Blogs

1.  On Bloomberg Law, Perry Cooper published an article titled Six Recent Decisions Show Fees More Obtainable, discussing some recent Federal Circuit cases on fees.  For previous discussion on this blog of these cases, see here, here, here, here, and here. She also published an article titled Arctic Cat Wants Justices to Eye Who Bears Onus of Patent Notice, discussing a cert petition recently filed regarding patent marking (see also item 3 below).  For previous discussion of this case on this blog, see here.

2.  On IPKat, Dr. Lisa Schneider published Keeping up with German patent litigation: Half-year case law review 2020.  The article discusses the proposed amendment to the German Patent Act (see item 4 below), Sisvel v. Haier, and some recent cases on preliminary injunctions.

3. On IPWatchdog, Eileen McDermott published an article titled Packet Intelligence Asks CAFC to Rehear Panel Analysis on Patent Marking Under Arctic Cat.  As the title indicates, patent owner Packet Intelligence argues that the Federal Circuit's interpretation of the U.S. patent marking statute is unsound.  For the record, I don't have a firm opinion about the merits of the legal issues involved (about the burden of proof, and whether licensees must comply with the requirement).  But I have long been of the view that it's dumb to condition the patent owner's ability to obtain the full measure of its damages on the owner (or its licensee) complying with the technicalities of the patent marking law.  For previous discussion of the case on this blog, see here.

4. On JUVE Patents, Mathier Klos published an article titled German Industry Remains a Battlefield Over Automatic Injunctions.  The article discusses the debate over the second draft of an amendment that would expressly introduce the proportionality concept into article 139 of the German Patent Act.

5.  On the EPLaw, Tobias Wuttke published an article titled DE-Divisional Game, discussing (and linking to a slightly longer discussion about) a recent decision of the Munich court holding that "abandoning patents and patent applications may amount to unfair competition, if the proprietor unduly exploits the German bifurcated system, in particular the complex interplay between the invalidity proceedings at the Federal Patents Court and the EPO on the one hand and the German litigation trial courts on the other hand."  If I understand correctly, the concern is that an owner whose patent has survived an opposition, but who fears a reversal on appeal, may wish to abandon the patent pending that appeal, while asserting a patent from the same family in infringement litigation--hoping that the first instance decision upholding validity of the abandoned patent will suffice for purposes of obtaining a preliminary injunction.  The author argues that the result is inspired by the U.K. courts' use of "Arrow" declarations.

6. On Law360, Tiffany Hu published an article titled Justices Asked to Ax 'Unprecedented' Ban in Software Fight.  The article discusses a cert petition filed by World Programming Ltd., a U.K. firm, challenging the Fourth Circuit's entry of an injunction forbidding WPL from selling products in the U.S. until it pays a $79 million judgment to its adversary, SAS.  The lower court also enjoined WPL from enforcing a U.K. ruling that refused to enforce 2/3 of the judgment because of its punitive nature.  This is not a patent case, but it seems relevant to the ongoing debate over antisuit injunctions. Copy of the cert petition here.

Also on Law360, Ryan Davis published an article titled High Court Told $268M Hearing Aid Patent Award Flouts Law, discussing a cert petition recently filed in Cochlear Corp. v. Alfred E. Mann Fdn., addressing several damages questions, including  reasonable royalties, the book of wisdom, and apportionment.

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