The scope of patent with an extended term became clearer with three concrete standards provided by the IP High Court in Japan

A patent term may be extended if there is a period during which a patented invention is unable to be worked until a marketing authorization has been granted (For further information, see here). However, there was, until recently, no case law in Japan on the interpretation of the scope of patent with an extended term, and high uncertainty as to patent infringement by generic drugs was a big issue in the pharmaceutical industry. On 20th January, 2017, the IP High Court’s judgment (grand panel) was handed down, answering this issue by establishing three concrete standards. This judgment attracts great attention of generic companies and will boost their marketing of generic drugs because these standards contributed to clear away the uncertainty of patent infringement.

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On sausages and Facebook/WhatsApp – Germany reforms its antitrust act (part 2 of 2)

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Guest post by Rupprecht Podszun, professor of Civil Law, German and European Competition Law at the University of Düsseldorf *

The German legislator currently amends the competition code so as to update it for the digital economy. This is a pioneering step. After having examined part of the proposed amendments yesterday (see here), this post will describe the new rules for the digital economy.

New rules for the digital economy

The implementation of the directive and the closing of the sausage gap coincided with a heated debate in German media on the power of internet companies, these Voldemorts from the Silicon Valley. Vice-Chancellor Sigmar Gabriel and the head of the influential German media house Axel Springer, Mathias Döpfner, led the campaign against Google & Co. And so, Gabriel’s ministry came up with new rules for the digital economy. Continue reading “On sausages and Facebook/WhatsApp – Germany reforms its antitrust act (part 2 of 2)”

On sausages and Facebook/WhatsApp – Germany reforms its antitrust act (part 1 of 2)

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©Bundeskartellamt


Guest post by Rupprecht Podszun,
professor of Civil Law, German and European Competition Law at the University of Düsseldorf *

The German legislator currently amends the antitrust act so as to update it for the digital economy. This is a pioneering step. This post will deal with some of the proposed amendments, while the next post (see here) will describe the new rules for the digital economy.

All EU Member States are working on a change of their competition law statutes, and actually should have completed that work by December 27, 2016. They need to implement the EU directive on antitrust damages claims (2014/104/EU) which aims at facilitating damage claims for victims of cartels and other anti-competitive practices that violate Art. 101 and 102 TFEU. At present, a mere handful of Member States has communicated success in amending their laws (see here). Continue reading “On sausages and Facebook/WhatsApp – Germany reforms its antitrust act (part 1 of 2)”

The lords of law – Veit Stoll (MSD)

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TrustinIP inaugurates a series of interviews to lawyers that stand apart for their excellent skills. We will ask these “lords of law” to express their view on legal issues and personal opinions, hoping to give our readers some enjoyable minutes. We start with Veit Stoll, Director Legal Affairs & Compliance for MSD Germany, Austria and Switzerland.

Good morning Mr. Stoll. What’s the weather like today in Munich?

Pretty fair. Partly sunny and some degrees Celsius above zero.

Today you are a renowned lawyer. What led you into studying law? As a school student, did you wish to become a lawyer?

Yes. Always wanted to be independent and have a broad education as basis for a variety of career choices. Continue reading “The lords of law – Veit Stoll (MSD)”

Recent developments on the admissibility of patent term extension in Japan

Drugs are not allowed to be marketed without a marketing authorization. Taking into account the investment on R&D for a new drug and the necessity to recoup such investment, the patent term may be extended by a period not exceeding 5 years if there is a period during which the patented invention cannot be worked. Later in this post, I will discuss the judgment of the Japanese Supreme Court in 2015, which caused the guidelines on patent term extension to be significantly amended.

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Does IEEE’s IP policy comply with competition law?

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There is a large body of legal and economic literature on standard-essential patents (SEPs) and competition law that focuses on the availability of injunctive relief and strategic behaviour of SEPs’ holders. There is much less literature on the role of standard-setting organisations (SSOs) and their IP policies (I dealt with this topic here).

The IP policies of SSOs became a hot topic in 2015, when the Institute of Electrical and Electronics Engineers (“IEEE”), one of the most relevant SSOs active in the information and communication technology (“ICT”) sector, modified its IP policy with an effort to better clarify the “reasonable and non-discriminatory” (“RAND”) commitments that SEPs’ owners are supposed to accept through the submission of a letter of assurance (“LOA”). Continue reading “Does IEEE’s IP policy comply with competition law?”

Punitive damages slipping into IP enforcement in Europe?

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The U.S. is known to have a regime of punitive damages in many different areas of law. This concept has however not won any significant ground in Europe, where one usually is allowed to be awarded only the actual damages suffered.

Last week, the CJEU handed down a quite remarkable judgment on damages in IP infringement cases (case C-367/15). The Polish Supreme Court had sought guidance from the CJEU on how to interpret the Enforcement Directive (2004/48/EC).

Poland had a national provision, which provided an alternative for an IP holder to seek damages corresponding to two or three times of a hypothetical license fee. The question was whether the Polish national provision could be seen to be compatible with EU law. The Advocate General (AG), in essence, answered in the negative (AG opinion). But the CJEU took a different approach. The CJEU concluded that the Enforcement Directive does not as such preclude a provision allowing for an IP holder to claim twice the amount of a hypothetical license fee. In its reasoning, the CJEU inter alia referred to international instruments (TRIPS, Berne, Rome) and also emphasized the fact that the Enforcement Directive is a minimum standard directive.

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