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Fordham Conference 2015 – US Patent Law Developments

Dimitrios T Drivas (White & Case) gave the speedy run down on the following points and cases, which some might find useful for following up on points of interest:

Supreme Court

The decision that in exceptional cases reasonable attorney’s fees may be paid to the prevailing party (an exception to the rule that each party bears its own costs in the USA). The exception was interpreted to mean some sort of ‘bad faith’ by the Federal Circuit overturning the District Court decision. The Supreme Court found that the District Court’s decision should be given due deference.

‘Indefiniteness’ has gone from ‘insoluble ambiguity’ to ‘fails to inform with reasonable certainty’.

Induced infringement (Limel [...]

FCJ: Goods Placed in “Internal” Transit Proceedings Do Not Infringe a Patent Right

by Anja Petersen-Padberg

The Federal Court of Justice decided in the “Electric Kettle” case (25.06.2014, docket X ZR 72/13) that the placing of goods in transit proceedings does not infringe a patent right in Germany as the country of transit. The court stressed that it is of no relevance whether the goods were placed in so-called “T1″ external transit proceedings or in “T2″ transit proceedings where goods are declared to be released for free circulation on the market of the European Union and are forwarded without sealing. Patent infringement may only be assumed if the goods are subject to a sales transaction in the transit country or if the goods are imported for this purpose. This must be [...]

Abuse of Process – Patentee does not have to assert all known means of infringement

A decision from Mr Justice Birss in Adaptive Spectrum And Signal Alignment Inc v British Telecommunications Plc [2014] EWHC 4194 has introduced additional complications for parties found to infringe a patent who then seek to work around the same. In essence that party cannot simply sit back and assume that the only feature to address is that which was successfully attacked by the patentee.  Instead that party must now consider whether their product or system might infringe in other ways (and work around the same as well).

The judgment stems from an infringement action brought by Adaptive Spectrum And Signal Alignment Inc. (ASSIA) against BT for infringement of two of its patents.  BT’s [...]

Specialized IP Courts in China: One Giant Step?

On August 31, 2014 the Chinese legislature approved a resolution to establish specialized IP courts in Beijing, Shanghai and Guangzhou. By early November, the Beijing IP Court was operational and had begun to take cases, with 28 being filed in the first four working days.

bj ip court

The Guangzhou IP Court is expected to be operational around December 15, 2014 and the Shanghai IP Court in January 2015. Some proclaim this as a giant leap forward in China’s IP protection landscape. Anticipation is building. But will it live up to the expectations? Let’s take a look.

Background
Unbeknownst to some, China has had specialized tribunals to adjudicate IP cases for years. Currently, there are about 560 IP [...]

To suspend or not to suspend – Bundesgerichtshof on bifurcation

by Hetti Hilge

In two recent and surprising decisions the Bundesgerichtshof (German Federal Court of Justice) clarified the effects of a first instance decision nullifying the patent in suit on the enforcement of a parallel infringement finding (including an injunction) and, upon second review, remedied what it considers an unintended oversight by the legislator (“Planwidrige Regelungslücke”) in the specific circumstances of patent litigation and bifurcation. Effectively “overruling” its own previous decision in the very same case (Microsoft vs Motorola), the court now ordered the temporary suspension of the enforcement of an appeal court judgment finding for infringement, against t [...]

German Court is Soothsaying What the Future will Bring for FRAND and Compulsory License Defenses

by Dr. Simon Klopschinski

In one of its latest orders the Karlsruhe Higher Regional Court has used the opportunity to take a glimpse into the crystal ball, in order to see what decision the Court of Justice of the European Union (CJEU) is going to render in response to the pending referral for preliminary ruling regarding the FRAND and compulsory license defense in case of standard essential patents (SEPs).

In recent years the information and telecommunication (ITC) sector has seen a wave of patent lawsuits in various jurisdictions, including Germany. Since most of the patents asserted in these proceedings form part of a standard, a core questions is whether enforcing SEPs complies with anti [...]

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