Lincoln, Darwin, and Invention

Because today (February 12, 2014) is the 205th anniversary of the birth of both the sixteenth United States President, Abraham Lincoln, and the great naturalist Charles Darwin, I thought it might be worthwhile to say a few words about Lincoln, Darwin, and their relevance to contemporary issues of patent law.  I will return to my normal subject of patent remedies later this week.

Lincoln was the first, and so far only, U.S. president to obtain a patent--specifically, U.S. Patent No. 6,469, dated May 22, 1849, titled "Buoying Vessels over Shoals."  Here is a link to the patent, and another to a write-up about it by Cherise LaPine on the "How Stuff Works" website.  Lincoln's model of his invention is on display in the Smithsonian Institution in Washington, see here, but apparently the invention was never built or commercialized. 

In the late 1850s, Lincoln also delivered a lecture on "Discoveries and Inventions," which according to the website Abraham Lincoln Online was not a big hit either.  (It is also distressing to see, in a few parts, how the Great Emancipator was capable of making disparaging comments about other peoples, but the historical record is what it is.)  But the last paragraph has become well-known and is still cited in contemporary debates over patent policy:   

Next came the Patent laws. These began in England in 1624; and, in this country, with the adoption of our constitution. Before then any man might instantly use what another had invented; so that the inventor had no special advantage from his own invention. The patent system changed this; secured to the inventor, for a limited time, the exclusive use of his invention; and thereby added the fuel of interest to the fire of genius, in the discovery and production of new and useful things.

From a comparative standpoint, it would be interesting to know whether any other heads of state have ever obtained patents.  Angela Merkel is a physicist and Margaret Thatcher was a chemist, but I’m not aware if either of them (or any other head of state) ever received a patent.  For an interesting discussion titled “Chemists and Engineers Who Were Heads of State,” see this link.   

To my knowledge Darwin had no patents either, though of course the principle of evolution by natural selection is one of the key scientific insights of all time, and our understanding of it has certainly laid the groundwork for a huge amount of further discovery and invention.  In my I.P. courses, however, I often use Darwin’s race with Alfred Russel Wallace to be the first to publish the theory an example of the independent, near-simultaneous discovery of scientific principles or inventions by two or more persons.   Here's something I've written about the matter in the past:

The principle of evolution by natural selection traces its origin, of course, to the writings of Charles Darwin and (less familiarly to many readers) his contemporaries Alfred Russel Wallace, Patrick Matthew, and William Charles Wells.  See Charles Darwin, The Origin of Species by Means of Natural Selection or the Preservation of Favored Races in the Struggle for Life (1859); Charles Darwin, The Descent of Man and Selection in Relation to Sex (1871); Alfred Russel Wallace, On the Tendency of Varieties to Depart Indefinitely from the Original Type, 3 J. Proceedings of the Linnean Soc'y (Zoology) 53 (1858); see also Daniel C. Dennett, Darwin's Dangerous Idea:  Evolution and the Meanings of Life 49 (1995) (discussing Matthew’s articulation of the principle of natural selection); Stephen Jay Gould, The Structure of Evolutionary Theory 137-38  n.* (2002) (discussing Matthew and Wells); Michael Shermer, In Darwin's Shadow:  The Life and Science of Alfred Russel Wallace 147-48 (2002).  Darwin’s race to complete publication of The Origin of Species, upon learning that Wallace had independently discovered the principle of natural selection, is recounted in, among other sources, Shermer, supra, at 118-21, 128-50; Robert Wright, The Moral Animal 301-10 (1994).

Neither Darwin nor Wallace wrote upon a completely blank slate.  On the basis of fossil evidence and observation of existing species, a few naturalists before Darwin and Wallace had grasped the basic idea that species evolve; but no one had previously articulated with much precision the mechanism by which evolution occurs.  See Gould, supra, at 64-66, 137-39; Ernst Mayr, What Evolution Is 5, 23-25, 80-81 (2001); Mark Ridley, Evolution 7-9 (1993).  Perhaps the most notable attempt to articulate a pre-Darwinian theory of changes within species was that of the French naturalist Jean-Baptiste Lamarck, who proposed, incorrectly, in his 1809 work Philosophie Zoologique that species could pass on acquired characteristics to their offspring.  See Gould, supra, at 170-97 (providing a sympathetic overview of Lamarck’s life and work, while noting his errors); Mayr, supra, at 81; Ridley, supra, at 8-9 (noting that Lamarck did not invent the theory of inheritance of acquired characteristics, which can be traced at least as far as back as Plato). 

The fact that even landmark scientific discoveries (like the principle of evolution by natural selection, or Newton’s and Leibniz’s near-simultaneous invention of calculus), to say nothing of lesser discoveries and inventions, are not only based on earlier contributions (as Newton said, “If I have seen further it is by standing on the shoulders of giants”) but also often are arrived at roughly the same time by different individuals working independently is also of potential relevance in crafting an optimal patent policy.  For an interesting discussion, see, e.g., Mark A. Lemley, The Myth of the Sole Inventor, 110 Mich. L. Rev. 709 (2012) (arguing that the principal public benefit of the patent system may reside less in its role in stimulating invention than in stimulating patent races). 

Annonay v. Albiges: Lyons Court of Appeals Applies Questionable Methodology in Awarding Lost Profits

A recent lost profits case from France is Annonay Productions France Sas v. Albiges SaS, Cour d’appel de Lyon, Sept. 12, 2013, PIBD 993, III, 1503.  The plaintiff is a coowner of a patent on a portable device for rolling up a swimming pool protective cover (dispositif mobile d'enroulement de couverture de securité pour piscine).   A contract between the two coowners allowed either of them to sue for infringement without notifying or accounting to the other.  One of the issues in the case was whether the defendant could raise the defense of invalidity where only one of the coowners filed suit, and the court concluded that the answer was no.  (By way of contrast, in the U.S., both coowners would have to be parties to an action for infringement.  For no clearly good reason, one coowner cannot compel an unwilling coowner to be a party.  See Roger D. Blair & Thomas F. Cotter, The Elusive Logic of Standing Doctrine in Intellectual Property Law, 74 Tulane L. Rev. 1323, 1351 n.124 (2000).)  The court affirmed a judgment that the defendant’s “Easy Pro 3” and “Easy Pro 4” models infringed.  On the question of damages, the court of first instance estimated the masse contrefaisante (here the defendant’s turnover, or chiffre d'affaires) as  €924,588.  However, because the Easy Pro devices incorporated improvements over the patented invention, that court concluded that the plaintiff would not necessarily have realized all these sales, and awarded €150,000 in damages. 

The Court of Appeals modified the damages award, stating that "Even assuming the improvement is real, it is an infringement, and we may not exclude a portion of the sales from the assessment of the masse contrefaisante."  ("Mais ce perfectionnement, à le supposer réel, est une contrefaçon et ne permet pas d’écarter une partie des ventes de l’appréciation de la masse contrefaisante.”)  The court of Appeals noted that the plaintiff’s accounting expert testified that the plaintiff’s average gross margin was 49.54%, and the court approved the method by which this rate was calculated.  The court then multiplied this rate by the defendant’s turnover and awarded the plaintiff the resulting figure, €458,040, stating that “Under these conditions, the ‘prejudice actually incurred and proved’ . . . is indeed €458,040 . . . ."  (“Dans ces conditions, le ‘préjudice réelement subi et prouvé’ . . . est bien de 458 040 euros . . . .")

In my book, I discuss the French case law on lost profits, stating (at pp. 265-66):

To calculate lost profits . . . the court estimates the number of sales the plaintiff would have made but for the infringement, taking into account such factors as the plaintiff’s capacity, customer preferences, possible noninfringing substitutes, and so on. It then multiplies this number by (a) the price at which the plaintiff would have sold the products and (b) the plaintiff’s profit margin.  From an economic perspective, this approach, including the consideration of noninfringing substitutes, seems correct in all particulars—subject only to the caveat that courts should use the plaintiff ’s profit margin on the forgone sales only, which as we have seen is likely to be higher than the plaintiff’s overall profit margin on sales of the patented product. French courts sometimes use the plaintiff ’s gross profit margin (marge brute) in recognition of this latter point.

Unless I'm missing something, the Annonay decision seems to depart from this framework by applying a approach that seems rather dubious from an economic perspective.  If the defendant's product was an improvement, it may well be reasonable to assume that the plaintiff wouldn't have earned the same number of sales as the defendant did but for the infringement.  In addition, to measure the plaintiff's loss accurately, you'd also want to take into account such factors as the comparative prices at which the parties sold or would have sold their products (which obviously affects the quantity demanded) and whether there were any noninfringing alternatives to which the defendant might have turned in the absence of infringement.  In any event, there's no good economic reason to presume that the plaintiff's turnover would have been the same as the defendant's; and if the plaintiff lost only some of the sales the defendant made, the plaintiff should recover lost profits on those sales and a reasonable royalty on the remainder.  For further discussion, see Roger D. Blair & Thomas F. Cotter, Intellectual Property:  Economic and Legal Dimensions of Rights and Remedies 209 (Cambridge Univ. Press 2005). 

Thursday miscellany: Papers on SEPs/FRAND by Lerner & Tirole, Geradin, and Contreras; Patent Remedies in Germany; Declaratory Judgments in the U.K. and Italy

1. On the topic of standard esssential patents (SEPs), three recent papers of note are Josh Lerner and Jean Tirole's Standard-Essential Patents, NBER Working Paper 19664, available here; Damien Geradin's The European Commission Policy Towards the Licensing of Standard-Essential Patents:  Where Do We Stand?, 9 J. Comp. L. & Econ. 1125 (2013), available here; and Jorge Contreras's A Brief History of FRAND, available here. 

Here is the abstract of the Lerner-Tirole paper:

A major policy issue in standard setting is that patents that are ex-ante not that important may, by being included into the standard, become standard-essential patents (SEPs). In an attempt to curb the monopoly power that they create, most standard-setting organizations require the owners of patents covered by the standard to make a loose commitment to grant licenses on reasonable terms. Such commitments unsurprisingly are conducive to intense litigation activity. This paper builds a framework for the analysis of SEPs, identifies several types of inefficiencies attached to the lack of price commitment, shows how structured price commitments restore competition, and analyzes whether price commitments are likely to emerge in the marketplace.

I may publish a post or a guest-blog on this paper sometime in the next few weeks.

Here is the abstract of the Geradin paper, which provides an overview of the law in the E.U.:

Defining the circumstances in which the licensing conduct or litigation strategy of a standard-essential patent (SEP) holder amounts to an abuse of a dominant position in breach of Article 102 of the Treaty has been one of the most intractable issues for the European Commission given the significance of the interests at stake and the diversity of opinions among stakeholders. Although the Commission has spent most of the past ten years investigating alleged abuses committed by SEP holders, many issues, such as the meaning of FRAND and the compatibility with Article 102 of injunctions sought by SEP holders to enforce their patents, remain unresolved given the lack of clear precedents. This article provides a critical review of the main investigations carried out by the Commission over the past decade, including pending cases before the Commission and the European Court of Justice. 

Finally, here is the abstract of the Contreras paper.  (This one I haven't read yet, but it's on my to-do list.)

Much has been written lately about commitments that participants in standards-setting activities make to license their patents on terms that are “fair, reasonable and non-discriminatory” (FRAND). These discussions pay little attention, however, to a long series of remedial patent licensing decrees issued by federal courts from the 1940s through 1970s that outwardly resemble FRAND commitments in all but the rationale for their imposition. These early decrees shed light on questions only now re-emerging as pertinent to the FRAND debate: the meaning of the non-discrimination prong of the FRAND commitment, the degree to which courts should intervene in the determination of reasonable royalty rates, the use of arbitration as a means for resolving licensing disputes, the extent to which royalty-free licensing may be “reasonable”, the effects of a potential licensee’s refusal to accept a patent holder’s license offer, the acceptability of a patent holder’s demand for reciprocal licenses from its licensees, and means for ensuring that such commitments survive the transfer of underlying patents.

This article offers the first historical analysis of the patent licensing decrees issued from the 1940s through the 1970s in view of their relationship to FRAND commitments made in the standards-setting context. It concludes that these historical patent licensing orders are, in fact, the direct lineal predecessors of today’s FRAND commitments, and that despite their differences, the interpretation and analysis of these remedial orders by courts, enforcement agencies and private firms offer essential insight into the interpretation of FRAND commitments today.

2.  Florian Mueller has had a couple of interesting remedies-related posts this week.  The first discusses the relevance of the Federal Circuit's 2011 TiVo decision to the question of whether Judge Koh will enter an injunction against Samsung following a January 30 hearing on post-trial motions in the damages retrial case relating to certain (non-SEP) Apple patents.  I blogged a bit about TiVo and its aftermath here.  The second discusses an infringement trial that begins next week in Mannheim, in which IPCom is seeking $2 billion in damages against Apple over a wireless SEP.  I will certainly want to follow this one.  Update:  There's also a short article about this case in today's Wall Street Journal, here.
 
3.  Daniel Hoppe-Jänisch published an article in the October 2013 issue of GRUR RR, titled Die Rechtsprechung der Instanzgerichte zum Patent- und Gebrauchsmusterrecht seit dem Jahr 2011 ("The Case Law of the Courts of First and Second Instance on Patent and Utility Model Law Since 2011").  The article discusses German cases on, among other things, preliminary injunctions, damages, and the Orange-Book-Standard compulsory licensing objection.  I'll probably start wading through some of the cited cases that I have not seen before.  One of the cases that caught my eye was the Judgment of Sept. 8, 2011, I-2 U 77/09, 2 U 77/09, OLG Düsseldorf--Schräg-Raffstore, which involved an award of infringer's profits.  Dr. Hoppe-Jänisch describes the case as standing for the proposition that, in assessing the portion of the defendant's profits attributable to the infringement, the fact that the patented feature is easy to design around is not to be taken into consideration, unless the design-around has already arrived on the market during the period of infringement ("Bei der Berechnung des Kausalanteils sei nicht zu beachten, dass die patentgemäße Ausgestaltung gelangt während des Verletzungszeitraumes bereits auf den Markt").  I downloaded the opinion from Juris.de, and the relevant language can be found in paragraph 144 of the opinion.  The court goes on to say that the defendant's argument amounts to the objection that it could have produced a noninfringing product and thereby earned the same or even a higher profit, but that such a hypothetical causal sequence is irrelevant.  For further discussion of this issue under German law, see my book pp. 273-74 and accompanying footnotes.     

4.  Steffano Barazza recently published a post on PatLit on the U.S. Supreme Court's recent decision in Medtronic v. Mirowski Family Ventures LLC, and cited my post on the decision, here.  Sig. Barrazza writes:

It is interesting to note, as observed by Professor Cotter here, that the path taken by the Supreme Court mirrors the approach employed by German courts ('the patentee always has the burden of proof with regard to the infringement issue, even in negative declaratory actions' - for a similar principle applied by Italian courts, see this case), but differs from the ruling of the Court of Appeal for England and Wales in the recent case of Generics [UK] Ltd v Yeda Research and Development Co Ltd & Anor ('the burden of establishing non-infringement fell on [the plaintiff that brought the declaratory judgment action'). The latter case, however, should probably be read in conjunction with Baxter Healthcare Corporation et al. v Abbott Laboratories, where the patentee was required to plead its case, even if the burden of proof remained on the plaintiff (see IPKat post here). From this point of view, even jurisdictions which provide for a shifting of the burden of proof are likely to introduce additional requirements, in order to identify the perimeter of the underlying infringement dispute that prompted the licensee to file the declaratory judgment action. 

The English court's requirement that the patentee plead its case, even if the burden of proof remains on the declaratory judgment plaintiff, makes a lot of sense, since the patentee presumably has a better idea than the declaratory judgment plaintiff just what it believes its patent covers.  In the Medtronic case, the declaratory judgment plaintiff argued that the lower courts could fashion something similar by requiring the patentee to respond to interrogatories explaining just how the product at issue allegedly infringes (see my post on the oral argument here), but the U.S. Supreme Court apparently didn't think that was a good enough reason to allocate the burden of proof to the DJ plaintiff.  I'm also thankful for the cite to the Italian case, Sentenza N. 14695 del 6 Settembre 2012 (Corte di Cassazione), available here.  Like the German case I noted in my blog, the Italian case is not a patent matter (it's a dispute over whether a worker was an employee or an independent contractor), but the court clearly states that, under article 2697 of the Civil Code, the burden of proving facts constituting a right falls on the one who asserts itself as the owner of the right and intends to assert it, even if that party is the defendant in a negative declaratory judgment action ("l'onere di provare i fatti costitutivi del diritto grava su colui che si afferma titolare del diritto stesso ed intende farlo valere, ancorché sia convenuto in giudizio di accertamento negativo").   

FRAND and Standard-Essential Patents in Japan

1.  On January 23, 2014, the Japanese IP High Court announced that the Japanese Apple/Samsung FRAND dispute will be the matter of a Grand Panel appeal, see here.  According to the IP High Court's website:

Intellectual property disputes often involve important legal issues, and in many cases, court decisions have a critical impact on corporate activities and the Japanese economy. In the area of IP law, there were requests to form reliable rules and ensure consistency of judicial decisions at a high court level. To meet such a need, the Grand Panel system, in which a five-judge panel hears cases and makes decisions, was introduced in April 2004. We will continue to work on the Grand Panel cases to form precedents that can be relied on.

In addition, as noted recently on the IPKat Blog, the IP High Court is soliciting amicus briefs on the question "Should there be any restriction on the right to seek an injunction and damages based on a standard essential patent (SEP) in respect of which a FRAND declaration is made?"  

My paper The Comparative Law and Economics of Standard-Essential Patents and FRAND Licensing, available here, provides some background on the case (as does this blog post from August 2013):

An abuse of rights argument . . . was successful in a dispute between Apple and Samsung in Japan.  In a decision handed down in February 2013, the Tokyo District Court held that Samsung could not obtain damages for the infringement of a SEP asserted against Apple due to Samsung’s “abuse of right.”68  In particular, the court held that, under the Civil Code of Japan, while "there are no express provisions regarding the duties of parties at the stage of preparation for contract execution . . . it is reasonable to understand that, in certain cases, parties that have entered into contract negotiations owe a duty to each other under the principle of good faith to provide the other party with important information and to negotiate in good faith.”69  The court rejected Samsung’s argument that the duty to negotiate in good faith had not arisen because Apple’s offer reserved the right to contest validity, and concluded that Samsung had not acted in good faith because, inter alia, it had refused to disclose information Apple had requested to substantiate Samsung’s offer a 2.4% royalty for all patents essential to the UMTS standards, and had continued to seek a preliminary injunction in the Japanese proceedings.70  The court therefore concluded that Samsung’s conduct constituted an abuse of rights precluding Samsung from the right to seek damages from Apple.71

---

68 See Tomofumi Sato, Apple Japan Limited Liability Company (Plaintiff) v. Samsung Electronics Co., Ltd. (Defendant), Tokyo District Court/Judgment of Feb. 28, 2013/Case No.  2011 (wa) No. 38969; Case to seek declaration of nonexistence of liability, 38 AIPPI J. 174 (2013).  A translation of portions of the judgment provided by Apple, Inc., can be found in Respondent Apple, Inc.’s Notice of New Facts Related to the Commission’s Questions on the Issues Under Review, and on Remedy, Bonding, and the Public Interest, In the Matter of Certain Electronic Devices, Inv. No. 337-TA-794 (FTC Mar. 4, 2013), available at  http://www.fosspatents.com/2013/03/japanese-court-deemed-samsungs-delayed.html [hereinafter Apple Translation].    

69 Apple Translation, supra note 68, at 10.  Article 1 of the Japanese Civil Code states that:

(1) Private rights must conform to the public welfare.

(2)The exercise of rights and performance of duties must be done in good faith.

(3) No abuse of rights is permitted.

Minpō [Civil Code], Law No. 89 of 1896, art. 1 (Ministry of Justice tr. 2009), available at http://www.moj.go.jp/content/000056024.pdf.  See also Florian Mueller, Japanese Court Deemed Samsung’s Delayed Disclosure of Essential Patents Abusive Conduct, Foss Patents (Mar. 5, 2013), available at http://www.fosspatents.com/2013/03/japanese-court-deemed-samsungs-delayed.html,  Mueller sees a parallel in certain provisions of the German Constitution and Civil Code.

70 See Sato, supra note 68, at 175; Apple Translation, supra note 68, at 11-13.

71 See Sato, supra note 68, at 175; Apple Translation, supra note 68, at 13.  According to Christoph Rademacher, there also has been a good deal of discussion in Japan concerning whether to adopt an eBay-like rule, but "[i]n light of the low success rates of Japanese patentees in Japanese patent infringement lawsuits and the difficulties defending the validity of plaintiffs' patents, the consensus in the Japanese patent community has been to refrain, at least for the time being, from introducing any measures that would result in further weakening the status of the patentee.” Christoph Rademacher, Injunctive Relief in Patent Cases in the US, Germany and Japan:  Recent Developments and Outlook, in Intellectual Property in Common Law and Civil Law 325, 341 (Toshiko Takenaka ed. 2013).  (For discussion of win rates and invalidity rates in Japan, see Cotter, supra note 5, at 298-300.)  Rademacher also discusses the possibility that a nonpracticing entity that merely licenses its patent would not be viewed as "practicing" the invention and therefore might be vulnerable to compulsory licensing under article 83 of the Japanese Patent Act.  Unlike article 93 of that act, which also permits compulsory licensing under some circumstances, article 83 does not require a showing that the license is necessary to serve the public interest.  See Rademacher, supra, at 344-46.  Apparently there are no cases applying this provision, though.

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2. Also in regard to Japanese law and SEPs, I would note that the two most recent editions of the Japanese IIP (Institute of Intellectual Property) Bulletin collectively include a two-part article titled The Exercise of Essential Patents for Standards, which is "an English translation of the summary of a FY2012 Institute of Intellectual Property (IIP) research study report."  Both can be downloaded here.  The abstract of Part 1 (published in the 2012 issue, that is, IIP Bulletin volume 21) reads as follows:

If the holder of a patent that is essential for a standard (“essential patent”) seeks an injunction on the grounds that the patent was infringed, it would make it practically impossible for the companies that have been conducting business in compliance with the standard to continue their business despite the capital investment that they have made so far. The exercise of such right would place those companies in a highly disadvantageous position against the patent holder, negatively affecting the future company management and the diffusion of the standard itself in some cases. In the field of telecommunications, in particular, there have been some pending lawsuits over the issue of whether the holder of an essential patent should be permitted to seek an injunction. In this technical field, there is an urgent need for determining the approach to these cases over essential patents.
Some people started arguing that the exercise of the right to seek an injunction should be limited in certain cases. Previous research has shown that opinions have been divided over whether such limitations should be imposed or not. In order to explain the current situation in Japan, I will (1) present the results of a study on domestic cases and the results of a domestic questionnaire survey and a domestic interview survey, (2) identify the issues that could arise when the holder of an essential patent seeks an injunction in the field of telecommunications, etc., (3) examine the relationships between patent rights and the competition law (antimonopoly law) in the field of telecommunications, etc., and (4) analyze various issues pertaining to the management of standards bodies. 

The abstract of Part 2 (published in the 2013 issue, that is, IIP Bulletin volume 22) reads as follows:

In recent years, a number of large-scale patent disputes over the exercise of rights based on standard-essential patents have been brought to courts worldwide. In Japan, a court made a noteworthy ruling that it constitutes an abuse of right for a patentee to claim damages without fulfilling the duty to negotiate in good faith despite its FRAND commitment. Also in the United States, the report released by the Federal Trade Commission (FTC, 2011) and the joint statement made by the Department of Justice and the United States Patent and Trademark Office (DOJ and USPTO, 2013) addressed issues of the exercise of rights based on standard-essential patents and (F)RAND terms for licensing such patents. Amid such trends, there is a growing necessity in Japan as well to develop debates on the exercise of rights based on patents.
In this research study, with the awareness of the situation mentioned above in mind, we surveyed domestic legal cases and foreign systems to review the recent trends in terms of the exercise of rights based on standard-essential patents. We also identified the present challenges while hearing opinions of patent professionals, and examined in which situation the exercise of rights based on standard-essential patents are found to be inappropriate, by what kind of legal basis such inappropriate exercise of rights can be restricted, and what could be the limits to such restriction under the existing law. This study report shows the outcome of the discussion on the exercise of rights based on standard-essential patents.

Part 2 states, inter alia, that "The committee . . . reached a consensus that a right to seek an injunction vested in a patent right is not of absolute nature but it should inevitably be restricted if the exercise thereof goes against the purpose of the patent system, which is to contribute to the development of industry."  In this regard, Minoru Takeda "proposes that a provision on the restriction on the exercise of a right to seek an injunction should be inserted in the Patent Act, following the existing provisions of Article 100, paragraph (1). This provision on restriction should be drafted from the perspective of indicating a simple and clear criterion that allows flexible interpretation to some degree, while making reference to the eBay decision under the US law."  Alternatively, Yoshiyuri Tamura proposes that, for certain situations, the abuse of right doctrine may be adequate to the task of providing a rationale for denying injunctions, but for cases involving patent holdup a statutory amendment merits further discussion.  Commentary also discusses the possible application, or not, of competition law or the patent act's compulsory licensing provisions.

It will be interesting to see if these discussions bear fruit either in legislation or judicial practice in Japan.