Monday, October 25, 2021

From Around the Blogs

1. EPLaw published a brief write-up of a Dutch decision in a case between Ericsson and Apple, holding that Ericsson was not entitled to a "freezing measure" pending a hearing.  According to the write-up, Ericsson had asked for the measure based on the possibility that Apple would file an antisuit injunction otherwise, but the court denied the request for lack of a concrete threat on Apple's part.  In particular, Apple's refusal to commit itself to not seeking an antisuit injunction was not a sufficient threat to justify the proposed measure.  (Compare with the position taken by the courts in Munich, which arguably view a failure to make such a commitment as tantamount to being an "unwilling licensee" (and all that flows from that), as discussed here.)

Update (10-26-2021):  More on this case on FOSS Patents this morning, suggesting that the differences between the Dutch and German courts' approach may not be all that substantial after all.

2. FOSS Patents has a three-post series (here, here, and here) on a recent conference on the amendment to Germany's patent law relating to injunctive relief (previously  noted, e.g., here).  The bottom line, according to these posts, is a depressing one:  don't expect German judges to be any more willing to deny or stay injunctions than they were before. 

3. Also relevant to injunctions in Germany, on IPKat Anselm Gripp recently provided a recap of a September 2021 program sponsored by GRUR on Germany's injunction gap (that is, the time, often a year or more, in between a court's finding of infringement and a decision by the Bundespatentgericht (BPatG) on validity).  The author notes that, in theory, the two proceedings could "be synchronized, either in terms of duration or in terms of outcome"--for example, by speeding up the BPatG's proceedings, having infringement courts grant stays more frequently, or by authorizing those courts themselves to determine validity (as is the case in many countries).  According to the author, speakers endorsed a range of possible responses or reforms; but if I'm understanding correctly, they didn't seem too confident that a recent amendment to the German Patent Act, requiring the BPatG to provide a non-binding indication (Hinweis) within six months of the initiation of the invalidation action, will have a huge impact on the stay rate.

4. On Law360, Joel Wacek and Brynna Smith published an article titled Fed. Circ. Micron IP Ruling Raises Damages Disclosure Bar.  The article discusses the August Federal Circuit decision in MLC Intellectual Property, LLC v. Micron Technology, Inc. holding that, as the authors put it, "the plaintiff's failure to disclose in its interrogatory responses certain documents and quantitative considerations related to the evaluation of license agreements merited the exclusion of its expert's reasonable royalty opinion."  The authors recommend the use of supplementary interrogatory responses to avoid problems down the road.  (I previously blogged about the August decision here, though I didn't focus on the discovery issue in that post.)

5. Both Patently-O and IP Watchdog have had some coverage of a pending bill that, inter alia, would prevent the owner of an assigned patent from recovering enhanced damages if the assignment was not recorded in a timely fashion.  I believe that encouraging the recordation of assignments would be a good thing, in that it would assist accused infringers of understanding the relationship between the original owner (which may still have some sort of beneficial interest in the patent or in the outcome of litigation) and the patent-asserting party--particularly in light of the fact that NPE suits, according to a recent RPX report as discussed on Law360, have increased substantially this year.

6. On Sufficient Description, Norman Siebrasse published a short post titled NOC s 8 Regime Is Still a Complete Code, discussing a Canadian decision which agrees with other Canadian case law that a generic drug manufacturer who fails in its bid to invalidate a drug patent and therefore recover damages under Canada's patent linkage law cannot recover damages, if the patent is subsequently invalidated in some other proceeding, by asserting some other type of claim.

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