Thursday, December 15, 2022

From Around the Blogs

1. On the Kluwer Patent Blog, Matthieu Dhenne published the first of a projected four posts on FRAND Litigation in France, titled The Nature of the FRAND Commitment.  Under French law, commentators tend to understand the FRAND commitment as a stipulation pour autrui.  The author argues, however, that to be more doctrinally precise the commitment is not “a stipulation for the benefit of third parties for licenses,” but rather as a “stipulation of a contract for another person, whereby the standard-setter (the stipulator) makes the patentee (the promisor) promise to enter into a licensing contract on FRAND terms with a third party beneficiary who accepts it.”  He concludes that such a stipulation is legally effective under French law.

2. Several months ago, Fabio Angelini and Sara Parrello published a post on the Kluwer Trademark Blog titled Reimbursement of the legal costs for the enforcement of IP rights in the EU:  “THE WINNER TAKES IT (ALMOST) ALL.”  The post discusses two 2022 decisions of the CJEU interpreting article 14 of the Enforcement Directive.  In NovaText GmbH v. Ruprecht-Karls-Universität Heidelberg, Case C-531/20, the court held that costs incurred to retain an IP consultant are potentially recoverable, but that they “cannot be automatic and unconditioned” and must instead be reviewed for reasonableness and proportionality.  In Koch Media GmbH v. FU, Case C-559/20 (previously noted on this blog here), the court held that attorneys’ fees incurred in connection with a warning or cease-and-desist letter are potentially recoverable “other expenses,” though again subject to review for reasonableness and proportionality.

3. On Bloomberg Law, Linda Chang and Eleanor Tyler published an analysis titled Global 5G Patent Rights Search for an Arena in 2023.  The authors discuss two “hot topics to watch in worldwide 5G SEP litigation during 2023,” “jurisdictional policy on granting injunctions against implementers during licensing fights,” and “the propriety and enforcement of anti-suit injunctions,” and note pending policy assessments in the E.U. and U.K.  Also on Bloomberg this past week was a short article by Kelcee Griffis noting that the Federal Circuit had affirmed without opinion Judge Alsup’s award of $5.9 million in attorneys’ fees in a case brought by Finjan against Juniper Networks.

4. On Law360, Robert Bell and Malgorzata Janiec published an essay titled Teva Case Aims Europe’s Pharma Crackdown at IP Loophole.  The authors discuss two pending E.U. investigations involving, inter alia, allegations that a patent owner’s disparagement of competing products constitutes an abuse of dominant position in violation of TFEU article 102.  Michael Carrier has previously written on this topic under U.S. law, see here.   This is a subject I will need to devote substantial attention to in connection with my forthcoming book project on wrongful patent assertion.  Also on Law360 a few weeks back was an article by Lauren Berg titled Wash. ‘Patent Troll’ Law Survives Constitutional Challenge, discussing (and linking to) a recent decision of the U.S. District Court for the District of Washington denying Landmark Technology A, LLC’s motion to dismiss an action brought by the Attorney General of the State of Washington, which argues that Landmark’s business model constitutes “bad faith patent assertion” in violation of Washington law.

5. On JUVE Patent, Mathieu Klos published a post tiled Dutch court extends cross-border jurisdiction in Novartis and Pharmathen battle, discussing a recent decision of the Court of Appeal in the Hague which he reads as “extend[ing] the jurisdiction of the Dutch patent courts in cross-border injunctions, which have long been a specialty of the Netherlands.” 

6. On IPWatchdog, Alexander Prenter published an essay titled Bringing Unwilling Licensors to the Table.  Mr. Prenter argues that courts in Germany have misapplied Huawei v. ZTE, and sees a need for "a set of ax-ante rules that apply pre-litigation that compel licensors to enter into FRAND licensing negotiations in good faith."  Meanwhile on FOSS Patents, Florian Mueller published a post titled Huawei, Qualcomm, InterDigital agree that licensing level must not serve as pretext for driving down standard-essential patent royalties:  IAM Connect 2022 panel.  

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