1. This past Monday I published a post titled German Court Affirms Preliminary Grant of Compulsory License for HIV Drug. We still are awaiting the release of the BGH's judgment in this case (all we have for now is a press release), but the June 2017 issue of GRUR has a brief discussion of the August 2016 judgment of the Bundespatentgericht in an article by Ingrid Kopacek and Wolfgang Morawek titled Aus der Rechtsprechung des BPatG im Jahr 2016: Teil II: Patent Recht und Gebrauchsmusterrecht ("From the Case Law of the Bundespatentgericht in 2016, Part 2: Patent and Utility Model Law"). See pp. 545-57, see in particular pp. 555-56. Also of possible interest, although it doesn't discuss the recent German case, is an article by Hugh Dunlop titled Compulsory Licensing under a Unitary Patent, 39 EIPR 393 (2017). Here is the abstract:
Expectations are high that the European Unitary Patent and the Unified Patent Court will get off the ground very soon. The new court will have jurisdiction over unitary patents (and "traditional" patents granted under the EPC that are not opted-out) for actions in relation to patent infringement and licences of right, but compulsory licences are supposed to be left to national courts. This article explores whether this assumption may be challenged and, even if it stands, whether national courts may take an EU-wide view of compulsory licences under unitary patents.
2. Also this week, Norman Siebrasse published another post on Airbus v. Bell (see my previous post here, which links to Professor Siebrasse's other posts on this case), this one discussing in greater depth the issue of determining the quantum of punitive damages in patent cases. As Professor Siebrasse notes, the rationales for awarding punitive damages under Canadian law are retribution, deterrence, and denunciation--a trio that dates back to an 18th century English case, Wilkes v. Wood, as cited in the 2002 Canadian Supreme Court decision in Whiten--but the only one of these that provides any real guidance with regard to quantification, if only in an imperfect sense, is deterrence:
The difficulty with this principled scheme, as I see it, is that it actually provides very little guidance in assessing quantum. Quantum must in the end be expressed as a number. Deterrence, as discussed below, naturally lends itself to quantification, but the siblings of denunciation and deterrence communicate moral values and judgments, which are by the nature almost impossible to quantify.
Highly recommended, and not just for patent aficionados.
3. I should also note that Professor Peter Picht's paper Unwired Planet/Huawei: A Seminal SEP/FRAND Decision From the UK, which I previously mentioned on the blog here, has been published in the July 2017 issue of GRUR Int (pp. 569-79). Here is a link, and here again is the abstract:
With its decision in Unwired Planet (UWP) v. Huawei, Birrs J has not only handed down the first major ruling on SEP/FRAND issues in England but also decided a case that poses a number of questions which are key for this area of the law. Well aware of this, he has drafted a thorough and extensive opinion that is likely to have considerable impact – not only – on the development of EC law. Inter alia, the decision discusses the legal nature of an ETSI FRAND declaration; the question whether “FRAND” is a range or a single set of licensing conditions; the procedural component of FRAND; the existence of a qualified “unFRANDliness”-threshold below which competition law is not triggered; the sequencing of negotiation and litigation over FRAND licences; hard-edged vs. soft-edged discrimination; the role of “Comparables” for calculating FRAND; and the anti-competitiveness of offering a mixed portfolio of SEPs and non-SEPs.