1. On the IP Watchdog Blog this morning, Mark Pedigo has posted an article titled Infringer Profits in Design Patent Cases. Mr. Pedigo discusses the two-part test the U.S. Supreme Court came up with in Samsung v. Apple, and how the lower courts may go about implementing it. There is an extended discussion of the deductibility of costs in the pre-Samsung v. Apple case law which is worth a look.
2. On the IAM Blog, Jacob Schindler has an article titled Patent owners sound alarm over proposed “compulsory licensing for SEPs” in Japan, which also links to provisional translations of a document titled "The Intellectual Property System for the Fourth Industrial Revolution" and another titled "The Intellectual Property System for the Fourth Industrial Revolution, April 19, 2017, Ministry of Economy, Trade and Industry: Outline of the Study Group’s Report." Apparently Japan is considering implementing a system whereby implementers of SEPs could demand the use of an alternative dispute resolution (ADR) proceeding to determine the royalty they owe for the use of an SEP. Obviously there are pros and cons to going forward with such a proposal, which differs from the approach of the CJEU in Huawei and the recent pronouncements from China (as discussed on this blog earlier this week). But at the end of the day, would a quasi-compulsory licensing system be all that different from the U.S. approach? It's a bit hard to imagine a court in the U.S. applying the eBay factors and still entering an injunction in a SEP case these days. And maybe that's just as well, though as always the details are important: how confident can we be that the entity deciding on the amount of the royalty will come up with a reasonably accurate amount, and how serious is the risk of holdup if an injunction were entered?