Monday, March 21, 2022

From Around the Blogs

1.  On Law360, Ryan Davis published an article titled Ax of $85M Verdict Shows Hurdles in Proving Patent Damages.  The article discusses the Federal Circuit's recent decision in Apple Inc. v. Wi-LAN Inc., which (as I discussed here) reversed an $85 million patent damages award against Apple and the sent the matter back to the trial court for a third trial on damages.  The article quotes various people, including me, discussing how the use of (purportedly) comparable licenses to quantify a reasonable royalty is extremely fact-intensive, and how challenges arise when an expert tries to derive a royalty for a single patent on portfolio licenses that may include hundreds of other patents.

2. On the Kluwer Patent Blog, Enrico Bonadio, Ichiro Nakayama, and Anushka Tanwar published a post titled The Japanese Government calls for views on SEP Licensing Negotiations.  According to the authors, citing an article from IAM Media, the Ministry of Economy, Trade and Industry (METI) has "issued a call for views . . . from all stakeholders regarding SEP negotiation guidelines."  (The IAM article is behind a paywall but appears to say that the deadline was March 8.)  Japan's efforts in this regard would seem to parallel similar efforts underway in the U.S., U.K., and E.U. (as noted, e.g., here.) 

3. On JUVE Patent, Mathieu Klos published a piece titled Philips and Hoyng win final instance FRAND battle against Wiko.  According to the article, the Dutch Supreme Court recently affirmed judgments for Philips against Wiko, enjoining Wiko from selling devices in the Netherlands and rejecting Wiko's FRAND defense on the ground that Wiko was an unwilling licensee. 

4. IP Watchdog and Law360 both published pieces discussing a bill recently introduced in the U.S. Senate to rein in foreign courts' use of antisuit injunctions.  Specifically, in the event that a U.S. courts were to find that the party seeking an antisuit injunction infringed, there would be a presumption that the infringement was willful and the case exceptional--thus opening up the infringer to the possibility of enhanced damages and fees.  The bill also would preclude the PTAB from instituting review of the relevant patent.  Although the bill doesn't mention China by name, the accompanying press release does.

My view is that, while I'm not a big fan of antisuit injunctions--I think they should be issued rarely--I don't think this is a great idea, given among other things that U.S. courts sometimes have been known to issue them in patent matters, and one might expect foreign courts to respond in kind to legislation like this.  Moreover, the use of antisuit injunctions seems to have dropped (to zero?) since the German courts last year started expressing the view that a implementer seeking an antisuit injunction in another country would be considered an unwilling licensee.  

For a more detailed, cogent criticism of the bill, see Florian Mueller's post here and Jorge Contreras' post here; the latter also notes the risk of "reciprocal actions by other countries."

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