Thursday, February 17, 2022

From Around the Blogs

1.  On Law360, Fei Dang, Yi Chang, and Hong Qiao have published an article titled A Look at Chinese Courts’ New Approach to IP Damages.  The article principally focuses on case law (involving not only patents but also other forms of IP) in which Chinese courts have begun to award substantial damages.  The authors observe “a shifting trend away from the traditional default reliance on statutory damage awards, which tend to be relatively small,” and devote specific attention to case law grappling with apportionment.  They also note that, for now, “it is less common to find an assessment of noninfringing alternatives,” although this is clearly relevant to determining the value of an infringing technology.

2.  Also on Law360 is an article by Caroline Simpson titled Austrian Pharma Co.'s €142M Award Nixed In Germany.  The article discusses a recent decision of the BGH finding said to have found “procedural flaws” in an arbitration award against a Taiwanese company (arising out of a patent licensing dispute) “with respect to product supply and damage quantification.”  I’ll have to see if I can find the BGH decision itself, after which I may have more to say about the case.

3. On China IPR, Mark Cohen published a piece titled China in the DOJ Draft Policy:  A Summary of the Comments.  The piece summarizes the author’s and others’ comments on the draft policy (previously noted, e.g., here), specifically as it relates to Chinese policy towards SEPs.  There have been several pieces published recently in various forums and blogs regarding the comments submitted on the draft policy prior to the February 4 deadline; for readers who want to access all of publicly posted comments, see here.

4. FOSS Patents published an article titled European Commission launches public consultation on standard-essential patents and potential SEP legislation:  feedback requested until May 9.  This follows similar calls for public consultation on matters related to SEPs in the U.K. and, as above, the U.S.  Also of interest is this piece discussing a decision by the Düsseldorf Oberlandesgericht holding that there was no specific threat of Xiaomi pursuing an antisuit injunction in China, sufficient to justify issuance of an anti-antisuit injunction in Germany.

5. On the Kluwer Patent Blog, Anders Valentin published a post titled Either/or – must the patentee chose between a PI or a main action in Denmark?  The post discusses a recent appellate decision holding that a patent owner had waited too long (15 months after filing the main action) to obtain a preliminary injunction, despite the owner’s argument that during that time it had obtained additional evidence through discovery obtained in the U.S.  The author expresses concern over the formalistic nature of the ruling, “without due consideration of the many practicalities necessary to prepare and initiate legal action.”  I guess patent law doesn’t get more Kierkegaardian than that . . .

6.  On IP Watchdog, Peter Damerell and Tess Waldron published English FRAND Developments to Watch Out for in 2022, discussing some pending/upcoming FRAND trials in the U.K.


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