The Commission seeks feedback to reform the “Vertical Block Exemption Regulation”

The “Vertical Block Exemption Regulation” (“VBER”, Reg. n. 330/2010) and the accompanying Guidelines on Vertical Restraints (“Guidelines”) are now almost nine years old and the European Commission has recently launched an evaluation roadmap to assess whether these documents can still be considered fit or need to be updated in light of the developments occurred over the last years, notably the increased importance of online sales and the emergence of new market players such as online platforms.

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Unwired Planet vs Huawei: the Appeal

Guest post by Vicente Zafrilla Díaz-Marta*

Earlier this week the Court of Appeal of London (Civil Division) published its judgement on appeal against the decision of Justice Birss in the Unwired Planet vs. Huawei case.

A brief summary of the facts and the evolution of the case

Unwired Planet sued Huawei for the infringement of various essential patents (SEPs) needed to implement the 2G, 3G and 4G technologies on the defendant´s devices. These patents had mostly been acquired by Unwired Planet from Ericsson. Other defendants, such as Samsung or Google reached agreements with UP along the proceedings.

Although both parties agreed to sign a license agreement, there were discrepancies concerning its terms, and its conformity or not with FRAND conditions. Continue reading “Unwired Planet vs Huawei: the Appeal”

Does Amazon comply with EU competition law? Some initial thoughts on the new Commission investigation

A few days ago the European Commission opened a preliminary investigation against Amazon to assess whether the American company is engaging in anticompetitive conducts. The Commission is concerned by the dual role of Amazon, which is at the same time owner of the biggest online market place and a seller of its private label products therein. Since Amazon obtains a significant amount of data from the transactions occurring on its market place, DG Comp suspects that Amazon might be using this information to better tailor its private label offer and eventually exclude the other retailers active on the market place. Continue reading “Does Amazon comply with EU competition law? Some initial thoughts on the new Commission investigation”

Can Blockchain be a ‘reasonable step’ to keep trade secrets safe?

Guest post by Alessio Balbo*

Blockchain and trade secrets: an interesting combination, surely, but how do they fit? It is worth to mention that know-how and trade secrets are among those intangible assets which have historically been difficult to protect for companies, as they do not fall under the scope of the more classical intellectual property rights, by nature (actually, by law) easier to protect or to enforce. A classic example of a trade secret is the Coca-Cola recipe, kept secret for generations of CEOs, and is apparently often changed, as the rumours whisper. This example shows the importance of trade secrets and the investments that companies make in order to protect such valuable information.  Continue reading “Can Blockchain be a ‘reasonable step’ to keep trade secrets safe?”

Oracle America v. Google: The battle of the code

Guest post by Carlos Muñoz Ferrandis*

Introduction

Welcome to a clash of software titans, where Oracle achieved to defend its proprietary code (Java) from the unstoppable and ever-expanding dominion of the open source-based Google platform, Android. This decision, even if showing an incredibly interesting copyright case shaping the U.S. concept of the fair use, pushes us to go beyond and adopt an overall perspective of current market behaviours of tech giants in the software sector.

The story of the case could be divided in two parts. The first one, dealing with the copyrightability of 37 Application Programming Interfaces (API). The Federal Circuit in 2014, following Oracle’s appeal to a 2012 District Court decision, declared the declaring code and the API packages’ structure, sequence, and organization (SSO) copyrightable as a matter of law. And the second one, where the two software giants had opposing approaches on question of fair use. Oracle again appealed a District Court decision of 2016, where the court had found that there was fair use. This stage ended on the 27th of March 2018 when the Federal Circuit declared that Google’s use of the Java API packages was not fair use. Continue reading “Oracle America v. Google: The battle of the code”

Is resale price maintenance illegal in China? The Gree case

In competition law, vertical resale price maintenance (“RPM”) agreements between upstream and downstream firms are generally seen as not so severely harmful to competition as horizontal price-fixing agreements among direct competitors. Therefore, whether and to what extent RPM should be prohibited is a question having been answered differently in different jurisdictions. A peculiar situation exists in China, where even in the same country the standard for assessing legality of RPM diverges between administrative and judicial enforcement. While, in administrative enforcement, the responsible enforcement body, the National Development and Reform Committee (“NDRC”) considers RPM illegal “per se”, the Chinese courts have established a more moderate  approach based on the “rule of reason” to assess the legality of such agreements. The latter approach is well exemplified in the Gree case, for which the Guangdong Higher People’s Court has issued a second instance decision earlier this month. Continue reading “Is resale price maintenance illegal in China? The Gree case”

Report from the 37th ATRIP Annual Conference in Helsinki – “Fairness, Morality and Ordre Public in Intellectual Property”

Setting the Stage

The general objective of the ATRIP organization is to contribute to the advancement of teaching and research in the field of the law of intellectual property (“IP”). The previous annual conference was organized in New Zealand. This year it was time to head north when the conference was organized in Helsinki and the topic was “Fairness, Morality and Ordre Public in Intellectual Property”. As a Finn, it was of course a particular pleasure to see around 160 IP scholars from all over the world in one’s hometown.

On the Stage

The first morning session on Monday kicked off with the overarching topic of “Measuring and Defining Fairness, Morality and Ordre Public in IP Law”. This session was chaired by Graeme Dinwoodie (Chicago-Kent College of Law, USA). Questions discussed were inter alia fairness in international IP instruments as well as public order. The second session, “Fairness, Morality and Ordre Public: What Does it Mean for Authors?” was chaired by Sam Ricketson (University of Melbourne, Australia). In this session, the balance of rights bwetween right holders and the authors were discussed as well as “fair” remuneration for authors. There was also a quite interesting presentation of copyright in street art by Pascale Chapdelaine (University of Windsor, Canada). One of the afternoon sessions had the topic “Fairness, Morality and Ordre Public: What Does it Mean for Groundbreaking Technologies?” and was chaired by Jens Schovsbo, (University of Copenhagen, Denmark). Here the presentations inter alia dealt with AI, blockchain and 3D printing.

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International antitrust cooperation in the age of Trump

It is August, many of you are in vacation or will go soon. Thus, it is the right time for a policy topic, something light but forward-looking to be enjoyed while sipping an ice tea in the middle of your daily Linkedin journey (I know you do that).

International cooperation in antitrust law: where we stand

The topic is international cooperation in antitrust procedures. It is commonly known that competition law is normally national or regional in scope, and no binding international treaties are currently in place. This is true for both substantial and procedural rules and is a major difference from other fields of law such as IP law. Although the OECD and the International Competition Network (ICN) provide for guidelines and recommendations with the aim to harmonise competition law worldwide, these soft law tools are not mandatory for national enforcers. Continue reading “International antitrust cooperation in the age of Trump”

Supreme Court rules that ISPs should not bear costs for the implementation of website-blocking injunctions in trade mark infringement cases

Guest post by William Wortley*

Last week, the Supreme Court ruled in Cartier International v BT and another that the costs of implementing injunctions against internet service providers (ISPs), ordering them to block access to websites selling trademark infringing goods, should be borne by IP rightsholders rather than ISPs. The landmark decision overturns the High Court decision, upheld in the Court of Appeal, and raises questions about the scope of the decision and the potential impact on rightsholders moving forward. Continue reading “Supreme Court rules that ISPs should not bear costs for the implementation of website-blocking injunctions in trade mark infringement cases”

Do data generated by connected cars raise antitrust risks?

In these days the European Commission is particularly active in understanding the possible antitrust impact of data-related conducts. In particular, from a recent policy document published by the Commission and from statements released by DG Comp´s official, it emerges that data generated by automated and connected cars might be considered an “essential facility” from a competition law perspective, at least in the early stage of the industry development, with the consequence that access to these data could not be refused to third parties. Consequently, manufacturers of automated and connected cars which refuse to license these data under fair terms to providers of cars-related services (i.e.: insurers, repairers, leasing companies) might be in breach of article 102 TFEU.

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