Monday, August 16, 2021

From Around the Blogs: News on Remedies from Around the World

With the ongoing catastrophes in Afghanistan, Haiti and, with COVID resurging, other places around the world, blogging about patent remedies right now seems a bit trivial.  Nevertheless, here's what I've got this morning.

1.  The National Bureau of Asian Research published Mark Cohen's article titled The Criminal Bias in U.S. Intellectual Property Diplomacy, which Professor Cohen also discusses on his China IPR blog here.  Here is the abstract:

Mark Cohen argues that a lack of balance created by an excessive focus in trade diplomacy on criminal remedies can manifest itself as a “bias” that disadvantages the leading role played by civil remedies in actual enforcement. He concludes that this appears to be the current situation in the United States with respect to the protection of intellectual property (IP) and warns of the risks of unbalanced trade diplomacy.

Although the thesis is not limited to U.S.-China relations, the article principally focuses on the concern that, in China in particular, "[p]ublicly oriented patent enforcement"--such as China's "publicly enforced administrative patent cases, which now outnumber civil cases"--"risks overwhelming the private, more market-oriented civil system and could be used disproportionately against foreigners."

2. Norman Siebrasse published a short post on Sufficient Description discussing a Canadian decision on compound interest, titled Presumption that Marginal Rate of Return Equals Average Rate of Return.  In the decision at issue, the court employed such a presumption, which Professor Siebrasse notes is incorrect as a matter of financial logic for reasons he has previously addressed here.

3.  Germany either has or soon will officially enact the amendments to the Patent Act that the German parliament approved a few weeks ago.  The amendment codifies judicial discretion to stay injunctions in some instances.  on FOSS Patents, Florian Mueller argues that it won't accomplish anything other than increased costs.  For a more favorable interpretation, see Amendment of German patent law: small step or giant leap for proportionality? 

4. Also on IPKat, there is a coauthored post titled Keeping Up with Belgian Patent Litigation: Year Case Law Review 2020.  Of relevance to patent remedies, in one of the cases discussed the Brussels Court of Appeal is said to have concluded, in effect, that until the Belgian legislature amends the law regarding reimbursement of attorneys' fees, prevailing parties in patent cases can recover no more than the statutory maximum of €39,000.  As the authors note, this appears to be in default of Belgium's obligations under E.U. law as decided in the CJEU's United Video Properties decision (previously discussed on this blog here).     

5. On the EPLaw Blog, Emma Irwin and Katie Cambrook published a post titled UK-Dr Reddy's Laboratories and Others v. Warner-Lambert, discussing a recent decision of the Patents Court setting out the terms of the relevant counterfactuals to use in an upcoming trial for damages against drug companies for patent assertion resulting in unwarranted exclusion from the market for pregalabin drugs.  I may have more to say about this one, as it relates to one of my ongoing projects (on wrongful patent assertion) in an upcoming post.   

6. On Law360, Dave Simpson has an article on a Texas jury's award of $300 million in favor of Optis against Apple in a damages retrial Judge Gilstrap had ordered earlier this year after expressing "serious doubs" about the $506 million verdict originally entered in this 4G SEP case.

7. On SpicyIP, Nikhil Purohit published an article titled FMC Receives Injunction for Chlorantraniliprole: Coverage-Disclosure, Anticipation, and Issues That Remained Unaddressed.  The post discusses a recent decision of the Delhi High Court awarding an interim injunction, and criticizes the court for discussing only one of the interim injunction factors (prima facie case) in depth and the others (balance of conveniences, irreparable harm, public interest) only cursorily or not at all.

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