Monday, September 20, 2021

From Around the Blogs

1. On Bloomberg Law, Matthew Bultman published an article titled Doubts Deepen if 'Exceptional' Patent Case Fees Include PTAB Work.  The article notes a division of authority on this issue among the district courts, and quotes Professor Megan La Belle's as opining that the word "cases" in Patent Act § 285 doesn't include administrative proceedings, even if Congress assumed that fees would be recoverable for at least some IPRs when it passed the AIA. 

2. On EPLaw, Giulia Pasqualetto and Federica Franchetti published a short post, with a link to a longer summary and to the decision under consideration, titled IT – Cappellotto v. Farid / Reasonable Royalties / Supreme Court.  According to the authors, the Supreme Court of Italy has held that the patent owner has the option of recovering damages measured by the value of the infringer's revenue from sales of infringing products multiplied by the patentee's profit margin (which may be higher than the infringer's profit margin).  If I remember correctly, Japanese courts on some occasions have employed a similar measure, but it has never made a lot of sense to me:  in my view, the correct measure would be either the plaintiff's actual lost profits (i.e., the revenue the plaintiff would have earned on sales it lost to the defendant, multiplied by the plaintiff's profit margin on those sales), or the infringer's actual profits, but not a combination of the two.  

3. On IPKat,  Annesley Merelle Ward published a post titled No "German injunction gap" expedition in Abbott v Dexcom global diabetes battle, as Mr Justice Mellor expresses "some regret".  The post discusses a recent decision of the Patents Court of England and Wales, denying a motion to expedite an infringement action between Abbott and Dexcom--notwithstanding the risk that parallel litigation in Germany could result in Abbott being enjoined from distributing products from Germany to other countries, before a final decision is reached on the validity of Dexcom's patents in suit in the German infringement actions.    

4. On the Kluwer Patent Blog, Enrico Bonadio and Giovanni Trabucco published Standard Essential patents in Italy: a review of the existing case law (Part II), a follow-up to this earlier published post.  The authors have uncovered a few more Italian SEP decisions, most of them addressing substantive rather than remedial questions, but state in their conclusion that "The Sisvel v. ZTE decisions issued by the Court of Turin held that to satisfy the Huawei requirements set by the CJEU, SEP owners need to inform the defendant about the alleged infringement, providing the necessary technical information," and that "[c]ustoms and criminal seizures have been increasingly and successfully used by SEP patent holders and non-practicing entities in Italy," but that "it remains doubtful whether resorting to criminal law to scare implementers can be accepted as a fair competition tool."

Also on Kluwer, Matthieu Dhenne published , discussing a recent paper by Pierre Véron.  I too noted the paper recently, here; the Dhenne post includes some of M. Véron's graphics.

5. On Law360, there is a short write-up by Caleb Drickey titled Gilstrap Won't Triple $300M 4G Patent Verdict Against Apple, noting a recent (very brief) order by the judge denying an enhancement in this large-verdict case (previously noted here).   

6. On Patently-O, Jorge Contreras published a post titled HTC v. Ericsson – Ladies and Gentlemen, The Fifth Circuit Doesn’t Know What FRAND Means Either, critiquing the Fifth Circuit's August 31 decision in this case (previously noted here, with links to other commentary).  For another recent commentary on the case, see Curtis Dodd & Chris Dubuc, Patent Damages Laws Regarding Apportionment are Inapplicable to Breach of Contract (FRAND) Claims, on IP Watchdog.

7. On Sufficient Description, Norman Siebrasse published a short post titled No Strict Rule that an NPE Cannot Elect an Accounting.  The post notes a recent decision of Canada's Federal Court of Appeal stating, in dicta, that non-practicing entities are not categorically precluded from obtaining an award of the infringer's profit, although "a patentee’s decision to license its invention may be a factor for a court to weigh when considering whether to permit a patentee to elect an accounting of profits."

I will be mentioning another recent post on Sufficient Description, dealing with antisuit injunctions, in a future post. 

8. On Spicy IP, Praharsh Gour published a post titled Division Bench Stays the Interim Injunction Granted to Kibow Biotech, calls Methodology of the Single Judge Bench for Establishing Prima Facie case "Flawed."  The author discusses a recent decision staying an interim injunction previously granted by a single judge, on the grounds that the plaintiff had not made out a prima facie case, or adequately considered the balance of conveniences.

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