Monday, January 11, 2021

From Around the Blogs

1.  On Law360, Rachel Elsby, Michael Petegorsky, and Hannah Price published an article titled Overlooked Patent Cases: Willful Infringement Developments.  (Willfulness is a precondition to a judgment for enhanced damages under U.S. patent law.)  The authors discuss recent case law addressing topics such as the relevance of opinions of counsel in defending against a claim of willfulness, whether an allegation of knowledge of the patent is sufficient to sustain a motion to dismiss, and the types of evidence that can be relevant in proving subjective intent.  This is very helpful summary, which I will be sure to refer back to when I teach my patent remedies course in a few weeks.   

2. On IPKat, Léon Dijkman published a post titled Does the injunction gap violate implementers' fair trial rights under the ECHR?  The post is a preview of a forthcoming article by Dijkman and Max Schellhorn in GRUR International.  The authors argue that the bifurcated systems of Germany and some other countries (under which infringement and validity determinations are made in separate proceedings, such that a judgment of infringement often precedes the other tribunal's judgment of invalidity) violates aritcle 6 oft he European Convention on Human Rights, which is understood as requiring member states to afford parties "a reasonable opportunity to comment on all relevant aspects of the case." More specifically, the authors state that "the defendant's formal ability to challenge a patent's validity may not suffice to safeguard their Article 6 ECHR-rights, if practically speaking this possibility offers little solace."

3. On China IPR, Mark Cohen published a post titled MofCOM’s New Blocking Rule: A Dangerous Weapon or a Necessary Remedy?.  The post discusses the newly-released Measures to Block the Improper Extraterritorial Application of Foreign Laws and Measures, which may have some relevance to, among other matters, global SEP litigation.

4.  On Sufficient Description, Norman Siebrasse published a post in late November titled Does the Discoverability Rule Apply to the Patent Act Limitations Provision?

UpdateFlorian Mueller just published a post titled Judge grants in part Ericsson's motion for preliminary anti-antisuit injunction against Samsung's Chinese action, with a link to the decision.  I will read through the decision later this afternoon.

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