Some Additional Commentary on the German Courts’ Interpretation of Article 139 Regarding Stays of Injunctive Relief
Comparative Patent Remedies
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4h ago
In October, I published a post noting two recent articles discussing the “proportionality” defense to injunctive relief under the amended article 139 of the German Patent Act:  Peter Georg Picht & Jorge L. Contreras, Proportionality Defenses in FRAND Cases - A Comparative Assessment of the Revised German Patent Injunction Rules and US Case Law, and Martin Stierle & Franz Hofmann, The Latest Amendment to the German Law on Patent Injunctions: The New Statutory Disproportionality Exception and Third-Party Interests.  I also noted some two recent blog posts, one by Thorsten Bausc ..read more
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Stierle on Preliminary Injunctions in Germany After Phoenix Contact
Comparative Patent Remedies
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1w ago
A recent post, titled Two Recent Articles on Injunctions, noted a recent article by Christian Heinze discussing the diverging interpretations of the CJEU’s Phoenix Contact decision by the Regional Courts in Düsseldorf and Munich.  That article also cited a recent paper by Martin Stierle, which I have now read.  This article, titled Provisional measures and the risk of patent invalidity—Phoenix Contact and the German approach to interlocutory injunctions, 17 JIPLP 962 (2022), will be helpful for English-speaking readers to get a better feel for German practice pre-Phoenix Contact, and ..read more
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Two Recent Articles on Injunctions
Comparative Patent Remedies
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2w ago
1.  Zhang Weijun and Zhang Xiaoquan have published a paper in China Patents and Trademarks No. 4, 2022 (pp. 87-97), titled Application of the Proportionality Principle to Injunctive Relief in German Patent Act and its Enlightenment to China.  The authors discuss the recent amendment of the German Patent Act that expressly permits courts to stay injunctive relief on proportionality grounds, and the arguments for and against adopting a similar rule in China.  As they note, there have been some Chinese decisions and commentary suggesting that courts in China already do have the pow ..read more
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Bereskin, Hsu, and Wang on eBay and Firm Value
Comparative Patent Remedies
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2w ago
Fred Bereskin, Po-Hsuan Hsu, and Huijun Wang have posted a paper on ssrn titled Injunction Likelihood, Exploration in Branding and Innovation, and Market Value.  Here is a link to the paper, and here is the abstract:                    Routinely granted injunctions during patent lawsuits have been regarded as a significant obstacle to economic growth and corporate competition. We use the 2006 Supreme Court ruling in eBay v. MercExchange that reduced injunction likelihood in cases related to information and com ..read more
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Sobol on Court-Appointed Experts in Italian IP Litigation
Comparative Patent Remedies
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3w ago
Agata Sobol has published an article titled Italian Supreme Court: importance of the court expert in litigation: GA and GE v Veneto Banca SpA, 45 EIPR 51-55 (2023).  The article discusses an unreported decision of the Italian Supreme Court, dated February 1, 2022, which the author states includes a 50-page (!) discussion of the role of court-appointed experts in Italian litigation.  Here is the abstract: This is not a judgment issued in an IP case, but it has important consequences for IP litigation in Italy. This judgment concerns the powers of court experts appointed in civil cases ..read more
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A Recent Australian Decision on Awards of Profits
Comparative Patent Remedies
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1M ago
The decision, dated November 18, 2022, is Aristocrat Technologies Australia Pty Limited v Konami Australia Pty Limited (No 3) [2022] FCA 1373 (Nicholas J).  It follows an earlier decision finding the patent in suit (Australian Patent No 754689) valid and infringed, and it’s fairly lengthy.  I’ll try to explain the gist of it here, but may return to some of the finer or more fact-specific points in future posts. The case involves electronic gaming machines (EGMs) having three principal components:  a cabinet, a platform, and games (para. 57).  Representative claim 1 of the ..read more
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From Around the Blogs
Comparative Patent Remedies
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1M ago
1.  Giulia Pasqualetto and Maria Giulia de Rosa published a post on EPLaw titled IT-Claims Limitation of a Granted Patent in PI Proceedings.  The authors discuss a November 2021 decision of the Court of Milan, involving a request for a preliminary injunction filed by Bossini S.p.A., owner of a European Patent on "a mixer group with detachable hand-held shower for dispensing water."  According to the authors, the court appointed an expert, who concluded that the patent was invalid for lack of novelty; as a result, the court denied the request for a preliminary injunction.  M ..read more
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CJEU to Consider Once Again Article 9(7) of the Enforcement Directive
Comparative Patent Remedies
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1M ago
Article 9(7) of the European Communities' Intellectual Property Rights Enforcement Directive states that where "provisional measures are revoked or where they lapse due to any act or omission by the applicant, or where it is subsequently found that there has been no infringement or threat of infringement of an intellectual property right, the judicial authorities shall have the authority to order the applicant, upon request of the defendant, to provide the defendant appropriate compensation for any injury caused by those measures."  Readers may recall that in its 2019 decision in Bayer v ..read more
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Blogging Break
Comparative Patent Remedies
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1M ago
 I will resume blogging after January 1.  Happy holidays ..read more
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Federal Circuit Affirms Denial of Instruction on Lump-Sum Damages, Exclusion of Purported Comparable Licenses
Comparative Patent Remedies
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1M ago
The case is ADASA Inc. v. Avery Dennison Corp., decided this past Friday in a unanimous opinion authored by Chief Judge Moore.  The patent in suit relates to RFID tags.  The district court had granted summary judgment that the claims in suit were patent-eligible, and that they were neither anticipated nor obvious.  The case proceeded to trial on infringement of claim 1 (infringement claims as to the other patent claims in suit having been severed and stayed) and on damages.  Regarding the latter, the court excluded the defendant’s expert from testifying on the basis of thre ..read more
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