1. Giulia Pasqualetto published a post on the EPLaw Blog titled IT-Providus-Lost Profits/Recovery of Profits-Supreme Court. The post discusses a July 2021 decision of Italy’s Supreme Court on the relevance of the infringer’s profits as a remedy for patent infringement. According to the author, the court held that, under article 125(1) of the Italian Intellectual Property Code, which implements IPRED article 13(1)(a), a court may consider the infringer’s profits when calculating lost profits damages, but that awards of lost profits under this provision require evidence that the plaintiff “would have been able to reach the same market served by the infringer.” On the other hand, article 125(3), which implements IPRED article 125(3), permits the recovery of the infringer’s profits even if the conditions for an award of lost profits are not satisfied, and even in the absence of evidence of willful infringement or gross negligence. As a matter of policy, I think this poses a risk of overdeterrence, though fortunately here the award was limited to the profits attributable to the patented feature—a safety device on a gas cartridges—and not the profits earned on the sale of the entire canister.
2. Gabrielle Girardello published a post on IPKat titled Urgent requests for declaration of non infringement (DNI)? Frequently DeNIed . . . The post discusses a recent decision of the Court of Milan denying a request for a declaratory judgment of noninfringement, based on a three-pronged test used by other Italian courts, and concludes that the requirements are "rather clear (and stringent)".
3. Praharsh Gour published a post on the SpicyIP Blog titled Delhi High Court grants interim injunction to Novartis against Natco’s use of Revolade patent. The post discusses a decision which, according to the author, the court “raised the bar for . . . defendants planning to resort to the plea of invalidity to opposed application of interim injunctions,” by requiring that the interim challenge “be a ‘credible one’ and not merely one which is ‘worthy of consideration.’” The court also noted that the defendants had not previously sought to invalidate the patent, which has been in force for several years, until they were charged with infringement.
4. On JUVE Patent, Amy Sandys published Top10 patent cases of the year 2021, which includes brief discussions of (1) the French pemetrexed litigation, which initially resulted in a €4 million provisional damages award that was later vacated on appeal while the preliminary injunction remained in place; (2) the increasing use of anti-antisuit (or “preemptive” antitrust) injunctions in Germany, which “seem to be the new magic bullet in FRAND disputes”; and (3) the global FRAND litigation brought by Nokia against Oppo, in multiple jurisdictions. For previous mention of the pemetrexed matter on this blog, see here and here; for discussion of, and link to, the Cour d’appel’s November decision vacating the provisional damages award while leaving the preliminary injunction in place, see PIBD 1173-III-1, Jan. 1, 2022.
5. For recent discussions of FRAND matters, see, e.g., Florian Mueller, 2022's most interesting patent enforcement question: how to raise a successful FRAND defense in Munich and Mannheim under Sisvel v. Haier (short of § 315), FOSS Patents, Jan. 11, 2022; Konstanze Richter, Access Advance license is non-FRAND, rules Regional Court Düsseldorf, JUVE Patent, Jan. 6, 2022; Enrico Bonadio, Diana Filatova & Anushka Tanwar, The UK Call for View on Standard Essential Patents and the Case for Arbitration, Kluwer Patent Blog, Jan. 18, 2022; Curtis Dodd & Chris Dubuc, Top 2021 FRAND/RAND Licensing Developments in the United States, Parts 1 and 2, IP Watchdog, Dec. 15, 2021 and Dec. 26, 2021; and Tim Pohlmann, SEPs in Europe and Beyond: Highlights from 2021, IP Watchdog, Dec. 30, 2021. Since the first of the year, there also have been several posts on IP Watchdog bad-mouthing the USPTO, DOJ, and NIST Draft Policy Statement on Licensing Negotiations and Remedies for Standards-Essential Patents Subject to Voluntary FRAND Commitments. Readers with a taste for that sort of thing will have no trouble finding them. For my views, see here.