High Court rules in favour of the SEP holder and narrows the scope of competition law defence in Unwired Planet vs. Huawei

On 5 April 2017 the High Court of Justice of England and Wales (Hon. Justice Birss) issued its long awaited judgment in the patent dispute between Unwired Planet and Huawei. The ruling is of high relevance, as it is the first decision adopted by a judge in the UK after the CJEU’s judgment in Huawei.

The facts

The trial began in March 2014 when Unwired Planet sued Google, Huawei and Samsung for infringement of five SEPs (and one non-essential patent). Later, Unwired Planet settled with Google and Samsung. Continue reading “High Court rules in favour of the SEP holder and narrows the scope of competition law defence in Unwired Planet vs. Huawei”

The U.S. Supreme Court judgment on forum shopping; TC Heartland LLC v. Kraft Food Brands LLC

Historically, defendants in patent infringement litigation lawsuits in the U.S. have often been sued in so-called “plaintiff-friendly” courts such as the Eastern District of Texas even when there is little or no connection between the legal issue and the jurisdiction in which they are to be litigated. This issue is known as forum shopping. Regarding this issue, the U.S. Supreme Court handed down a very important judgment on 22nd May, 2017. The judgment could make it more difficult for a patent holder to file a lawsuit in plaintiff-friendly courts.  Continue reading “The U.S. Supreme Court judgment on forum shopping; TC Heartland LLC v. Kraft Food Brands LLC”

Pills of competition law: Aspen, Uber and e-commerce

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These are busy days for EU competition law.

Today, the European Commission has come back to the old good pharmaceutical market and opened an investigation against Aspen for having charged excessive prices on its “off-patent” drugs (the same case has already been decided in Italy by the Italian Competition Authority in 2016, see here). This may be seen as a follow up to Margrethe Vestager’s recent speeches against excessive prices (here and here). However, even more recently, Advocate General Wahl delivered an opinion where he stated that excessive pricing may occur only in regulated markets with high barriers to entry, since in a free and competitive market high prices would attract new entrants and would not give rise to competitive issues (§ 48, see here for further remarks). Therefore, a question arises: where are the barriers to entry in the Aspen case, insofar as Aspen does not own any patent (already expired for years) and third parties are free to access the market? Continue reading “Pills of competition law: Aspen, Uber and e-commerce”

Protective letters in the UPC

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At least if the current plan holds, the Unified Patent Court will quite soon be up and running. Businesses express concerns on possible misuse of the UPC’s powerful measures for patent enforcement such as pan-European injunctions and Saisie, i.e., an order to compulsorily preserve evidence on alleged infringers’ premises. Along with these measures, however, the UPC will also provide tools aimed exactly at preventing the misuse of such orders. A so called “protective letter” will be one of the tools to that end. This tool may be unfamiliar to many readers from outside Germany, since it is mainly a German peculiarity and although available in several other European jurisdictions, such as Switzerland, the Netherlands and Belgium, it has limited practical importance there. Now, being introduced by the UPC agreement, the protective letter is expected to gain its influence throughout Europe. This post briefly introduces what a protective letter is, and discusses some special features of a UPC protective letter and some considerations for preparing protective letters. Continue reading “Protective letters in the UPC”

Recent development in Japanese patent case law; the doctrine of equivalents and the Supreme Court judgment in the Maxacalcitol case

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In my previous post, I wrote about an IP High Court judgment (the Maxacalcitol case) regarding doctrine of equivalents in patent infringements in Japan. The defendants appealed against the IP High Court judgment and the Supreme Court handed down the final judgment on 24th March, 2017.  Continue reading “Recent development in Japanese patent case law; the doctrine of equivalents and the Supreme Court judgment in the Maxacalcitol case”

Peruvian patent litigation on infringement and invalidation: A sui generis case of bifurcation

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Guest post by Diego F. Ortega*

The Andean Community is the result of the seeking of the balanced and harmonious development of Bolivia, Colombia, Ecuador and Peru, which in May 26, 1969 signed the Cartagena Agreement, laying the groundwork for the creation of a subregional community initially known as Andean Pact and later renamed as Andean Community. In order to achieve the said objective, the Andean Community promotes a continuous process of integration and economic and social cooperation. In particular, this process of integration involves the need of having common rules as to matters that foster the unification of the market, such as industrial property rights.

The industrial property system within the Andean Community was established by the “Decision 486”, which aims to guarantee a rigorous scrutiny as to the fulfillment of the requirements needed for the granting of a patent. Thus, Andean Community does not provide only for the mandatory performance of a substantive examination carried out by the national patent authorities of its Member Countries, but also for mechanisms which allow third parties to prove that an invention does not meet the legal requirements, seeking the denial of the patent (through a pre-grant opposition request) or, if the patent is granted, its revocation (through an invalidation request). Continue reading “Peruvian patent litigation on infringement and invalidation: A sui generis case of bifurcation”

Why did Japanese electronics companies surpass rivals in technologies and number of patents, but lose in business?

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Car navigation systems, DVD players, liquid crystal displays, solar panels, DRAM memory and lithium ion batteries are products that have been invented and developed mainly by Japanese companies. The companies created new markets and got high market shares with many patents to exclude rival companies. Then the world’s markets expanded several times larger in scale. They kept investing high amounts in R&D for higher functionalities. Their world’s market shares recorded once more than 80% in all above-mentioned products except for DRAM memory (more than 40%). However, even though the market expanded, their shares have been drastically decreasing although they had developed cutting edge technologies with many patents related thereto. There is one report (Masahiro Samejima et al., Encouragement of IP Strategy, February, 2016), which analyzed the reason of their defeat in business and introduced a new interesting point of view. I would like to briefly discuss it here.

Continue reading “Why did Japanese electronics companies surpass rivals in technologies and number of patents, but lose in business?”

AG Wahl provides guidance to define “excessive prices” under EU competition law

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Some months ago, in a public speech, the EU Competition Commissioner Margrethe Vestager set the antitrust radar against exploitative conducts and, particularly, against “excessive pricing” in the pharmaceutical, energy and hi-tech markets. Her words had a lot of echo in the antitrust community, since the Commission is traditionally reluctant to step against high prices, for many different reasons (essentially, it lacks of resources and expertise to define “fair” prices, if this concept really exists).

In the past days, Advocate General Wahl came back to that topic and, in response to a request for a preliminary ruling, delivered to the CJEU an opinion on the issue of “excessive pricing”. AG Wahl’s reasoning mainly relates to the market concerned by the request for a preliminary ruling, namely the licensing business of collecting societies. However, it shreds some light on one of the most economic issues of competition law, and, if the opinion is confirmed by the Court, it will provide guidance for future investigations. Continue reading “AG Wahl provides guidance to define “excessive prices” under EU competition law”

Reverse burden of proof and trade secrets in patent litigation – Part one

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Background – lack of protection

For a long time in many European countries, pharmaceutical compounds were not eligible for patent protection. Prior to the adoption of TRIPS, there were actually 22 countries in which the protection of pharmaceutical compounds was unavailable. Innovative pharmaceutical developers were only able to indirectly try to protect their pharmaceutical product by protecting the process for manufacturing the product. At the time, some states made efforts to compensate for the lack of product protection in different ways. In Finland, you could apply for a so called “analogous process patent”, by which you were able to get a patent for if you had developed a new product, but the scope of protection was, odd as it may seem, nevertheless restricted to the manufacturing process.

Continue reading “Reverse burden of proof and trade secrets in patent litigation – Part one”

Revised Patent Examination Guidelines in China welcome more patents on business models

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Last October, the State Intellectual Property Office of China (SIPO) released draft revisions to its Guidelines for Patent Examination for public consultation (see my earlier post). This month, SIPO published the final text of the revised Guidelines, which will enter into force on 1 April 2017. In comparison to the draft, the final version remains substantially unchanged. This may be a sign of support from the stakeholders. In fact, the proposed revisions received a quite good press immediately after their release, even when it comes to the part of revisions regarding patents on business models, which have been and probably are still one of the most controversial aspects of the IP system in many other countries such as the U.S.

As the SIPO explicitly stated, the planned revisions are aimed to strengthen the IP protection for innovation in emerging fields such as Internet, e-commerce, big data and to improve the IP protection system for business models. This emphasis reflects the state of innovation in China, where indigenous businesses have been so far quite successful in developing innovative services and products in these emerging fields. While it can be debated whether an expansion of patent protection into the arena of business models would indeed do more good than harm to the innovation, the objective of the Chinese policymakers is clear: to promote business model innovation through more IP protection.

While it remains to be seen in long term whether the above policy objective can be achieved, it is for individual inventors and businesses more interesting what immediate changes in practice will come out of the planned revisions. So, let’s first take a look at the revision itself. Continue reading “Revised Patent Examination Guidelines in China welcome more patents on business models”