1. On Law360, Gabe Sukman published an article titled Avoiding Willful Patent Infringement in Freedom-to-Operate. The article presents a series of best practices for companies to follow in determining freedom-to-operate, while reducing the risk of a finding of willful infringement. It discusses, among other matters, the risk that a do-not-read policy could result in a finding of "willful blindness" sufficient, according to some courts, to constitute willful infringement. For other recent commentary on this blog concerning willfulness, see here. Also of interest on Law360 is Timothy Syrett and David Katz's 5th CIr. Antitrust Ruling Misinterprets FRAND's Purpose, critiquing the appellate decision in Continental Automotive Systems Inc. v. Avanci LLC, previously discussed on this blog here.
2. On ChinaIPR, Mark Cohen published an article titled Three Countries Seek to Join the EU SEP Case. He writes that the U.S., Japan, and Canada "have now asked to join the EU consultation request with China at the WTO regarding Chinese practices in issuing anti-suit injunctions ("ASIs") for standards-essential patents (SEPs)". For previous discussion on this blog of the EU's request, see here.
3. On Sufficient Description, Norman Siebrasse published a post titled Brulotte Is Not the Law in Canada. The post discusses a recent decision of the Court of Queen's Bench of Alberta construing a contract as requiring a party to pay royalties for the use of an invention post-patent expiration. As Professor Siebrasse notes, the decision is consistent with a previous decision of the Queen's Bench of Saskatchewan--and inconsistent with U.S. Supreme Court decisions Brulotte v. Thys and Kimble v. Marvel. I agree with Professor Siebrasse that the U.S. rule is foolish and have previously argued, albeit unsuccessfully, that it should be repealed. Siebrasse also published an interesting post last month regarding a case in which the Federal Court awarded elevated costs to the prevailing party, in part because the unsuccessful plaintiff refused to bifurcate proceedings on liability and damages. As he notes, "the question of how to deploy costs awards to encourage just yet efficient resolution of a dispute is always tricky." This is something I hope to tackle in my pending project on wrongful patent assertion.
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