From Around the Blogs: Injunctions, Antisuit Injunctions, FRAND, and More

1. On FOSS Patents, Florian Mueller published a post titled Patent holders don’t have to be afraid of proportionality defense to injunctive relief in Dusseldorf, much less in SEP cases:  judges outline their thinking, discussing a recent presentation by Judges Dr. Daniel Voss and Sabine Klepsch on the recent amendment codifying German courts’ authority to stay injunctions in patent cases, albeit only under very limited circumstances.

2. On IPKat, Jan Jacobi published a post titled No IP, no right to information? CJEU to clarify scope of article 8 Enforcement Directive, concerning a referral to the CJEU on the issue of whether an IP (here, copyright) plaintiff can request information concerning an alleged infringement, pursuant to article 8(1) of the Enforcement Directive, before having proven that it owns a valid IP right.

3. On JUVE Patent, Amy Sandys published a post titled AstraZeneca and Hoyng avert damages payment to health insurer Menzis.  The post discusses a ruling by the Court of Appeal in the Hague holding that AstraZeneca is not obligated to pay health insurance company Menzis compensation, where (1) AstraZeneca had obtained an injunction against a generic drug maker, which meant that Menzis had to pay for AstraZeneca’s higher-priced drug, but (2) the patent was later invalidated.  I will have to include this decision in my forthcoming study of wrongful patent assertion, in particular the conditions under which courts within the EU will require compensation under these types of circumstances following the CJEU’s Bayer v. Richter decision.

4.  On the Kluwer Patent Blog, Boukje van der Maazen published a post titled NL—Cross-border Jurisdiction in FRAND and Anti-Anti-Suit Injunction Proceedings.  The author discusses two recent decisions of the District Court of the Hague.  In the first, according to the author, the court “held that it had international jurisdiction to hear Vestel’s” claim for “a declaratory judgment that neither Access Advance’s pool license offer nor the bilateral offers of its members Philips, GE Video Compression, and IP Bridge are FRAND, that Vestel’s license offer(s) are FRAND or, in the alternative, that the Dutch court set a global FRAND rate.”  As the court sees it, Dutch law permits the joinder of the non-Dutch non-EU parties (Access Advance, GEVC, and IP Bridge) on the basis of the facts alleged.  In the second case, the court rejected a claim by Ericsson for an anti-antisuit injunction against Apple Inc. (US) and related entities, on the ground that there was insufficient evidence that Apple would seek an antisuit injunction against Ericsson.  Apple’s unwillingness to promise not to do so in the future wasn’t enough (contrary, as I understand it, to the current views of the Munich courts on anti-antisuit injunctions).

5.  On Law360, Timothy Muris published an article titled Biden FRAND Policy Will Help Protect Competition.  The author, a former Republican chair of the FTC, supports this sensible policy correction, though he argues that the portion of the draft that appears to support a Huawei v. ZTE negotiation framework “should not foreshadow a tacit acceptance of a more European and rules-based formalism”.