NOPR Collection:

The Rational Basis for FRANDly Courts Denying Injunctive Relief for SEPs Infringement

Sat, 01 Mar 2014 00:00:00 GMT

Title: The Rational Basis for FRANDly Courts Denying Injunctive Relief for SEPs Infringement Authors: Pai, Yogesh Abstract: Increasingly, courts across several jurisdictions are unwilling to grant injunctions in cases involving infringement of Standards-Essential Patents (SEPs), the teleological reason being the unfair/inequitable outcomes due to the patentee gaining an additional market power not conveyed by the patent. The courts by evaluating the equitable factors deny injunctions based on an underlying logic that since a patentee is purely interested in deriving royalty on his patents committed by way of Fair-Reasonable and Non-Discriminatory (FRAND) licensing offers he may be compensated monetarily in lieu of an injunction. However, availability of adequate remedy at law coupled with lack of irreparable harm due to existence of FRAND commitment is not the only way to explain the rational basis for lack of injunctive relief when viewed through a theoretical and conceptual prism. This note chronicles the legal construct of patent injunctions from a comparative law perspective and articulates that the rational basis for denial of an injunction for alleged infringement of SEPs is due to patent law’s inability to construe the ‘right to exclude’ and its relationship with SEPs protected market since it is fraught with conceptual and inherent definitional fallacies of assessment of ‘market power’ that go beyond the pale of patent law and policy. Page(s): 146-156

The Court of Justice Recasts the EU Patent Term Extension System

Sat, 01 Mar 2014 00:00:00 GMT

Title: The Court of Justice Recasts the EU Patent Term Extension System Authors: Cook, Trevor Abstract: A legal framework providing for de facto patent term extension for pharmaceuticals has existed in the EU for over twenty years and a parallel one for agrochemicals for nearly fifteen. One might therefore be forgiven for thinking that by now the major features of this system were fairly well settled. However, the commercial importance of the products that it protects, being high value products in regulated sectors that have succeeded in securing a marketing authorisation, has meant that the system has attracted a disproportionate amount of litigation. The means by which such extension is achieved - the Supplementary Protection Certificate regime, and which combines concepts from both patent and regulatory law – is a matter of EU law and so is ultimately interpreted by a body – the Court of Justice of the EU – whose recent judgments in this field have upset settled expectations. The consequences of these judgments are still being worked through in the case law, but their origins lie in certain decisions made by national courts. This article traces how this situation came about and identifies some of the uncertainties that remain in the system. Page(s): 141-145

Ghostwriting in Polish Copyright Law – A New Perspective Needed?

Sat, 01 Mar 2014 00:00:00 GMT

Title: Ghostwriting in Polish Copyright Law – A New Perspective Needed? Authors: Jankowska, Marlena Maria Abstract: It is worthy of note that the so-called ‘ghostwriting’ contracts are subject to much debate under the copyright legislation of most countries. There is usually little concern where moral rights are perceived as waivable, which appears to be the current situation in most common law systems. However, in most civil law systems in continental Europe, where it may have been explicitly stated that these rights are not transferable (and sometimes unwaivable too), statutory law struggles to find the answer as to whether ghostwriting constitutes an unenforceable or even illegal activity. Yet, it is known that in the legal doctrine of certain countries (Germany, Switzerland) ghostwriting contracts are in principle allowed under copyright law. This paper provides a detailed analysis of the ghostwriting contract from a ‘hometown’ perspective, which happens to be Polish copyright law. Page(s): 133-140

Reflections on Recent Developments of Statutory Public Interests in Patent-based Section 337 Proceedings

Sat, 01 Mar 2014 00:00:00 GMT

Title: Reflections on Recent Developments of Statutory Public Interests in Patent-based Section 337 Proceedings Authors: Yu, Yang Abstract: After the recent amendments in 2011 and 2013 of the Rules of Practice and Procedure by the International Trade Commission (ITC), at least from the procedural perspective, complainants presently have been burdened with an increased cost of collecting adequate information concerning statutory public interests even before putting forward the complaint, in order to justify the desired remedy by virtue of indicating no harm to statutory public interest. This reflects the ITC’s aspiration to make the final determination more precise and equitably justified on the analysis of public interest issues, so as to ultimately protect relevant domestic industries in terms of curbing intellectual property infringements in imports simultaneously without unduly sacrificing certain statutory public interest. Although the actual effect of the amendments in the long run still remains to be seen, the amendments possibly will generate some desirable results: first, from the perspective of law and economics, they are conducive to decrease the possible related adverse impacts in terms of negative externalities and increase economic efficiency; second, the amendments are also favourable to curb the existing ‘patent troll’ suits, although they are currently still not severe, by means of adequate considerations concerning statutory public interests, so as to optimally achieve the ultimate legislative goal of Section 337 and third, it is evident that an interest-balanced approach, in terms of more in-depth analysis of public interest, is better than the traditional all-or-nothing approach to some extent. Accordingly, a more equitable adjudication in terms of a better interests balance can be attained by utilizing the interest-balanced approach. Page(s): 123-132