Thursday, September 23, 2021

Some Recent Articles on Patent Remedies from the European Intellectual Property Review

I am slowly making my way through a backlog of European I.P. journals.  Today's post highlights three articles that I had not previously mentioned, which appeared in the European Intellectual Property Review (EIPR) in 2020.  The July 2021 issue of EIPR has a couple of additional articles I will mention in a forthcoming post.

1. Joshua Marshall published Unjustified Threats as a Cause of Action, 42 EIPR 150-55 (2020). Here is the abstract:

This article seeks to categorise unjustified threats as a cause of action. Hitherto, unjustified threats have been treated as tortious and the threat-maker deemed a legal wrongdoer. This article argues that orthodox principles of tort law cut against the unjustified threats regime. It is suggested that it is more analytically attractive to treat the regime as a form of estoppel or as a sui generis cause of action.

I found this article very helpful, as I think through some ideas for a pending project on the various ways in which the law regulate wrongful patent assertion.

2.  In the same issue, Victor Henum and Anders Valentin published Decision from the Eastern High Court Changes Danish Practice Regarding Assessment of Recoverable Legal Costs in Patent and IP Cases, 42 EIPR 196-201 (2020).  Here is the abstract:

With its decision of 29 August 2019, the Eastern High Court of Denmark brings the Danish practice on assessing legal costs in patent and IP cases into conformity with EU law in the area. The decision is expected to substantially change the court’s former conservative practice of awarding costs in patent and IP cases.

Compare the outcome here with the outcome of a Belgian decision noted recently on the IPKat Blog, which I linked to here, indicating that Belgian practice remains out of synch with the CJEU's United Video Properties decision on recovery of costs (previously discussed on this blog here). 

3. Enrico Bonadio and Luke McDonagh published Sisvel v Xiaomi:  A SEP Dispute in the Netherlands Highlights the Global Challenge of FRAND Licensing, 42 EIPR 618-20 (2020).  Here is the abstract:


This comment examines the patent litigation battle over standard-essential patents (SEPs) that took place between Sisvel and Xiaomi at The Hague Court of Appeal in the Netherlands in early 2020. The case is an indicator that courts in different European jurisdictions will continue to go their own way when it comes the crucial decision of whether to grant injunctions on SEPs. The UK, which a decade ago was viewed as a jurisdiction better known for revoking patents than for issuing injunctions, appears to have become more "patentee-friendly" (at least in the case of SEP-owners). The Netherlands, meanwhile, applies an approach that appears more critical of the activities of NPEs, taking their lack of manufacturing productivity into account when determining the balance between whether to grant an injunction or not. This approach could well prove influential on other courts, and perhaps even the CJEU, if the rate of NPE litigation of SEPs increases in Europe in the years to come.

As noted elsewhere, the parties recently settled their SEP disputes.  

4. Tanguy de Haan published The CJEU Sides with IP Right Holders:  The Bayer Pharma Judgment (C-688/17) and the Consequences of the Europeanisation of Provisional and Precautionary Measures Relating to IP Rights, 42 EIPR 767-73 (2020).  Here is the abstract:


With its interpretation in the Bayer Pharma judgment of the concept of "appropriate compensation" under the Enforcement Directive, the CJEU did not only grant a significant protection to intellectual property right holders, but also confirmed that, as far as civil law liability is applied to intellectual property, national courts in the EU can only apply their national law provided that the latter is in line with EU law.

For previous discussion of the Bayer Pharma decision on this blog, see here.  

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