Thursday, February 4, 2021

From Around the Blogs

1.  On the Kluwer Patent Blog, Matthieu Dhenne published an essay by Professor Anne-Catherine Chriariny titled .  Professor Chriariny notes the risk of forum shopping if different courts take it upon themselves to set global FRAND rates, and suggests that "one might imagine ETSI"--which is headquartered in France--"could modify its IPR in order to assume this competence (i.e. fixing the royalty rate) or expressly designate the Judge – the French Judge – who could establish objective criteria for setting a global rate for the FRAND license. Failing that, a conflict rule could be added in the ETSI IPR which would be binding on both the holder of the SEP patent and the candidate for the FRAND license.”  For my recent thoughts on some of these issues, see here.

2.  On FOSS Patents, Florian Mueller published a post titled Another pre-emptive strike by the German judiciary against patent injunction reform: no reform at all might be the best outcome by now.  The post discusses, among other things, an article recently published in GRUR by German Federal Supreme Court Judge Klaus Grabinski.  I haven't read the article yet myself; these days, I work remotely and only go to my office every couple of weeks to check my mail, but I am hoping that this issue of GRUR will be there when I check this weekend.  Based on the post, however, and if I understand correctly, the article argues that a pending bill to amend Germany's patent act by conferring some (very) limited discretion to stay injunctive relief should not authorize courts to consider third-party interests in deciding whether to exercise this authority.  Rather, third-party interests should be taken into account only in connection with applications for compulsory licenses.  As Mr. Mueller notes, however, such applications are rare--indeed, to my knowledge, Germany approved only one in the past thirty years or so, see discussion here and here--and thus the proposal would even further weaken an already very weak bill.

3.  IPWatchdog published a post titled Inhofe Bill Would Authorize Commerce to Penalize Chinese Companies that Withhold Wireless SEP Licensing Fees.  The post discusses a pending bill that would do, well, what the title says.  Personally, I think I would be inclined to let the courts deal with bad-faith behavior on the part of implementers, if and when it occurs, rather than to enact these additional penalties into law.

4.  On Bloomberg Law, Perry Cooper published an article titled Trademark Next Hot Area of IP Law, Federal Court Judge Says.  The article discusses some remarks given by Federal Circuit Judge Kathleen O'Malley at a recent webinar.  Judge O'Malley notes, among other things, that Congress recently amended the federal trademark statute (the Lanham Act) to create a rebuttable presumption of irreparable harm (for discussion, see, e.g., here).  It quotes Judge O'Malley as stating that “Frankly, I love the change with respect to the presumption with respect to preliminary injunctions,” and that “I wish we could get that change in the patent arena, since I think eBay has done some real damage.”  I have great respect for Judge O'Malley, but I'd like to know:  where exactly is the evidence that eBay has had this deleterious effect?  If anything, as I have noted previously (see here and here), the evidence seems to point in the opposite direction.     

5.  On a personal note, I have a tremendous amount of administrative work, among other matters, to complete by the end of this month, so I'm thinking of taking a blogging break for the coming week to catch up on some of it.

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