This document summarizes a presentation on competition law and standards essential patents (SEPs) in a global context. It discusses the challenges of multi-jurisdictional antitrust enforcement of SEP licensing disputes. It also analyzes the Unwired Planet v. Huawei case where a UK court ordered a worldwide FRAND license. The presentation concludes that while SEP holders and implementers operate globally, enforcement is national, increasing costs and risks of conflicts. Greater convergence is needed, for example through standards development organization guidelines and alternative dispute resolution.
This presentation by Herbert HOVENKAMP, University of Pennsylvania Law School, was made during the discussion “Licensing of IP rights and competition law” held at the 131st meeting of the OECD Competition Committee on 6 June 2019. More papers and presentations on the topic can be found out at oe.cd/lipr.
variety of industries and private practitioners attend this event for worthwhile benchmarking and networking with the “who’s who” of the 337 bar, including senior decision-makers from the ITC, companies and practitioners involved in some of the most high profile cases to date.
Knobbe Martens Partner Mauricio Uribe recently wrote "The Effect of Microsoft v. Motorola" for Bloomberg BNA's Patent, Trademark & Copyright Journal. Uribe discusses how Judge James L. Robart’s framework for determining a royalty rate for infringement of a standard essential patent ‘‘is now on the cusp of changing the patent litigation landscape.’’
Starting May 13, significant changes in the law of design patents come into effect. First, the U.S. and Japan both join the Hague Agreement for the Registration of Industrial Designs. Second, all U.S. design patents filed May 13 or later will have a 15-year term from issuance. This is an increase from the current 14-year term. Third, starting May 13, applicants are no longer required to file a petition and pay fees to include color drawings in U.S. design applications.
The Federal Circuit Review is a monthly newsletter featuring the latest case summaries handed down from the U.S. Court of Appeals for the Federal Circuit.
In this Issue:
Smartphone War Update: Some of Apple’s Patents Survive Invalidity Challenge
• Sale by Foreign Supplier Invalidated Patent
• District Court Abused Discretion in Refusing to Keep Confidential Documents Secret
This presentation by Herbert HOVENKAMP, University of Pennsylvania Law School, was made during the discussion “Licensing of IP rights and competition law” held at the 131st meeting of the OECD Competition Committee on 6 June 2019. More papers and presentations on the topic can be found out at oe.cd/lipr.
variety of industries and private practitioners attend this event for worthwhile benchmarking and networking with the “who’s who” of the 337 bar, including senior decision-makers from the ITC, companies and practitioners involved in some of the most high profile cases to date.
Knobbe Martens Partner Mauricio Uribe recently wrote "The Effect of Microsoft v. Motorola" for Bloomberg BNA's Patent, Trademark & Copyright Journal. Uribe discusses how Judge James L. Robart’s framework for determining a royalty rate for infringement of a standard essential patent ‘‘is now on the cusp of changing the patent litigation landscape.’’
Starting May 13, significant changes in the law of design patents come into effect. First, the U.S. and Japan both join the Hague Agreement for the Registration of Industrial Designs. Second, all U.S. design patents filed May 13 or later will have a 15-year term from issuance. This is an increase from the current 14-year term. Third, starting May 13, applicants are no longer required to file a petition and pay fees to include color drawings in U.S. design applications.
The Federal Circuit Review is a monthly newsletter featuring the latest case summaries handed down from the U.S. Court of Appeals for the Federal Circuit.
In this Issue:
Smartphone War Update: Some of Apple’s Patents Survive Invalidity Challenge
• Sale by Foreign Supplier Invalidated Patent
• District Court Abused Discretion in Refusing to Keep Confidential Documents Secret
These are the slides for a presentation that I shall deliver over Zoom on 2 Sept 2020 at 14:00. It discusses the judgment of the UK Supreme Court in Unwired Planet International Ltd r v Huawei Technologies (UK) Co Ltd [2020] UKSC 37 which was delivered on 26 Aug 2020.
As the legal landscape continues to evolve in terms of intellectual property law, the Los Angeles Business Journal once again turned to some of the leading IP attorneys and experts in the region to get their assessments regarding the current state of IP legislation, the new rules of copyright protection, licensing and technology, and the various trends that they have been observing, and in some cases, driving. Below is a series of questions the Business Journal posed to these experts and the unique responses they provided – offering a glimpse into the state of intellectual property law in 2014 – from the perspectives of those in the trenches of our region today.
Georgetown Univ. Law Center Conference: Strategies for Worldwide Patent Litig...WilmerHale
From The Georgetown University Law Center Conference: The Changing Patent Landscape held on March 23, 2015.
This presentation covers:
- Trend toward globalization of IP litigation
- The world is becoming increasingly interconnected
* Global supply and distribution chains
* Markets outside the U.S. taking on even greater importance
* Proliferation of standards
- Litigation outside the U.S. may offer important strategic advantages
The Federal Circuit Review is a monthly newsletter featuring the latest case summaries handed down from the U.S. Court of Appeals for the Federal Circuit.
In this Issue:
• Judgment of Infringement Entered as Sanction
• Patent Exhaustion Does Not Apply to Harvested Seeds
• Judges Disagree on § 101 Standards
• Litigation Is Not a Domestic Industry
A presentation discussing interplay with Patent Office proceedings, use of the pilot program, updates on domestic industry, and the latest on public interest. They also discussed best practices in preparing for ITC litigation.
The Federal Circuit Review is a monthly newsletter featuring the latest case summaries handed down from the U.S. Court of Appeals for the Federal Circuit.
In this issue:
Evidence of Deliberate Decision to Withhold Reference Required for Inequitable Conduct
Licensee Bears Burden of Proving Non-Infringemet in Some Circumstances
No Inequitable Conduct for Failure to Disclose Litigation Involving Parent of Application
Mere Possibility of Allegedly Infringing Activity Insufficient for Declaratory Judgment Jurisdiction
Doctrine of Equivalents Is Available for “Substantially All” Limitation
Court Finds Broadest Reasonable Interpretation of Claim Unreasonable
The Trademark Review is a monthly newsletter prepared by Knobbe Martens attorneys covering relevant and current issues in trademark law.
In this Issue:
• Ron Paul’s Complaint to Regain RonPaul.org Constitutes Reverse Domain Hijacking
• MOTT’s for Baby Food Is Considered Primarily Merely a Surname
• Company Uses More than Is Reasonably Necessary to Advertise that its Test Strips Work with Another’s Meters
Partner Michael Fuller wrote an article for the Bloomberg BNA - Pharmaceutical Law & Industry Report discussing how the PTAB may be taking a more balanced approach in biotech and pharmaceutical IPRs.
Georgetown Univ. Law Center Conference: Post-Grant Patent Proceedings: Are th...WilmerHale
From The Georgetown University Law Center Conference: The Changing Patent Landscape held on March 23, 2015.
This presentation covers:
- Statistics on Post-Grant Proceedings
- Rule Changes for Post-Grant Proceedings
- IPR as Part of a Litigation Strategy
- Patent Owner’s Strategy in an IPR
- IPR Termination
On May 11, 2016, the President signed into law the Defend Trade Secrets Act (DTSA). The DTSA significantly expands protection of intellectual property rights by creating a body of trade secrets law that applies nationwide and by allowing businesses to enforce their trade secret rights in federal court. Previously, trade secrets were protected only by state laws (which varied from state to state), and trade secret claims ordinarily could be brought only in state court. The new federal law does not preempt the state laws; it provides an additional avenue for protection and enforcement.
Patent litigation isn’t what it used to be.
Monumental changes to U.S. patent law have changed the rules of the litigation game. Basic assumptions about patent law that existed just a few years ago no longer apply. The changes have raised new questions about venue, costs and validity. The shifts in the patent landscape are forcing companies and their counsel to re-evaluate their intellectual property portfolios. Some in the patent bar are calling it a “brave new world.”
The marcus evans 5th Product and Pipeline Enhancement for Generics Conference hosted industry leaders within the Generic Pharmaceutical, Branded Pharmaceutical and API industries operating globally. These leaders shared best practices, strategies and tools on portfolio management and business strategy, as well as legal, intellectual property and patent issues.
Knobbe Martens' attorneys presented on the following topic:
*Analyzing Recent Updates to the Hatch-Waxman Act to Grasp Future Impacts and Challenges
*Studying recent changes that could impact the industry, including 180-day exclusivity and complications regarding patent listings
*Drawing lessons from the close relationship between the patenting of generic products and FDA regulatory approval to pinpoint areas of improvement
*Considering the impact biosimilar products could have on market entry and patent strategies
*Reviewing both real-life rulings and hypotheticals regarding Hatch-Waxman litigation to identify future strategies
Paul Conover, Curtis Huffmire and Brent Babcock recently presented at the IN3 Medical Device Summit conference in San Francisco, CA. This presentation covers: recent patent cases from the supreme court, medical device patent statistics and cases, and USPTO Post-Grant Proceedings lessons learned after two years.
The extraordinary two-year legal saga of Pintrips has ended in a California U.S. federal court.
In a bench trial, a judge sided with Pintrips, ruling that the travel-planning site can’t be blocked from using its like-sounding name.
The judge found that Pintrips invented its name by its own efforts. He was persuaded by the evidence that “pin” has been a term in generic use among the computer savvy prior to the existence of Pinterest.
Two years ago Pinterest, which claims to be the country’s third-most visited social network, alleged that Pintrips chose a name similar to its own and thus infringed on its trademark.
But despite the risk of significant legal costs and distraction, Pintrips defended itself until the end, represented by the law firm Kenyon & Kenyon.
Georgetown Univ. Law Center Conference: Patent Law Developments in the Suprem...WilmerHale
From The Georgetown University Law Center Conference: The Changing Patent Landscape held on March 23, 2015.
This presentation covers:
- Patent Eligibility: The Alice Effect
- Attorney’s Fees: The Octane/Highmark Fallout
- Indefiniteness: The Nautilus Voyage
- Patent Damages: Reasonable royalties after VirnetX and D-Link
- Injunctive Relief: eBay, Apple/Samsung, and the ITC
- Inter Partes Reviews: The Gathering Appellate Storm
- The Next Wave: Teva, Commil, Kimble, Google
Presentation delivered during 9th Seminar on Media and the Digital Economy (21-22 March 2019).
http://fsr.eui.eu/event/annual-scientific-seminar-on-media-and-the-digital-economy-9th-edition/
This presentation by Maurits Dolmans from Cleary Gottlieb was made during a roundtable discussion on Competition, Intellectual Property and Standard Setting held at the 122nd meeting of the OECD Competition Committee on 17 December 2014. Find out more at http://www.oecd.org/daf/competition/competition-intellectual-property-standard-setting.htm
These are the slides for a presentation that I shall deliver over Zoom on 2 Sept 2020 at 14:00. It discusses the judgment of the UK Supreme Court in Unwired Planet International Ltd r v Huawei Technologies (UK) Co Ltd [2020] UKSC 37 which was delivered on 26 Aug 2020.
As the legal landscape continues to evolve in terms of intellectual property law, the Los Angeles Business Journal once again turned to some of the leading IP attorneys and experts in the region to get their assessments regarding the current state of IP legislation, the new rules of copyright protection, licensing and technology, and the various trends that they have been observing, and in some cases, driving. Below is a series of questions the Business Journal posed to these experts and the unique responses they provided – offering a glimpse into the state of intellectual property law in 2014 – from the perspectives of those in the trenches of our region today.
Georgetown Univ. Law Center Conference: Strategies for Worldwide Patent Litig...WilmerHale
From The Georgetown University Law Center Conference: The Changing Patent Landscape held on March 23, 2015.
This presentation covers:
- Trend toward globalization of IP litigation
- The world is becoming increasingly interconnected
* Global supply and distribution chains
* Markets outside the U.S. taking on even greater importance
* Proliferation of standards
- Litigation outside the U.S. may offer important strategic advantages
The Federal Circuit Review is a monthly newsletter featuring the latest case summaries handed down from the U.S. Court of Appeals for the Federal Circuit.
In this Issue:
• Judgment of Infringement Entered as Sanction
• Patent Exhaustion Does Not Apply to Harvested Seeds
• Judges Disagree on § 101 Standards
• Litigation Is Not a Domestic Industry
A presentation discussing interplay with Patent Office proceedings, use of the pilot program, updates on domestic industry, and the latest on public interest. They also discussed best practices in preparing for ITC litigation.
The Federal Circuit Review is a monthly newsletter featuring the latest case summaries handed down from the U.S. Court of Appeals for the Federal Circuit.
In this issue:
Evidence of Deliberate Decision to Withhold Reference Required for Inequitable Conduct
Licensee Bears Burden of Proving Non-Infringemet in Some Circumstances
No Inequitable Conduct for Failure to Disclose Litigation Involving Parent of Application
Mere Possibility of Allegedly Infringing Activity Insufficient for Declaratory Judgment Jurisdiction
Doctrine of Equivalents Is Available for “Substantially All” Limitation
Court Finds Broadest Reasonable Interpretation of Claim Unreasonable
The Trademark Review is a monthly newsletter prepared by Knobbe Martens attorneys covering relevant and current issues in trademark law.
In this Issue:
• Ron Paul’s Complaint to Regain RonPaul.org Constitutes Reverse Domain Hijacking
• MOTT’s for Baby Food Is Considered Primarily Merely a Surname
• Company Uses More than Is Reasonably Necessary to Advertise that its Test Strips Work with Another’s Meters
Partner Michael Fuller wrote an article for the Bloomberg BNA - Pharmaceutical Law & Industry Report discussing how the PTAB may be taking a more balanced approach in biotech and pharmaceutical IPRs.
Georgetown Univ. Law Center Conference: Post-Grant Patent Proceedings: Are th...WilmerHale
From The Georgetown University Law Center Conference: The Changing Patent Landscape held on March 23, 2015.
This presentation covers:
- Statistics on Post-Grant Proceedings
- Rule Changes for Post-Grant Proceedings
- IPR as Part of a Litigation Strategy
- Patent Owner’s Strategy in an IPR
- IPR Termination
On May 11, 2016, the President signed into law the Defend Trade Secrets Act (DTSA). The DTSA significantly expands protection of intellectual property rights by creating a body of trade secrets law that applies nationwide and by allowing businesses to enforce their trade secret rights in federal court. Previously, trade secrets were protected only by state laws (which varied from state to state), and trade secret claims ordinarily could be brought only in state court. The new federal law does not preempt the state laws; it provides an additional avenue for protection and enforcement.
Patent litigation isn’t what it used to be.
Monumental changes to U.S. patent law have changed the rules of the litigation game. Basic assumptions about patent law that existed just a few years ago no longer apply. The changes have raised new questions about venue, costs and validity. The shifts in the patent landscape are forcing companies and their counsel to re-evaluate their intellectual property portfolios. Some in the patent bar are calling it a “brave new world.”
The marcus evans 5th Product and Pipeline Enhancement for Generics Conference hosted industry leaders within the Generic Pharmaceutical, Branded Pharmaceutical and API industries operating globally. These leaders shared best practices, strategies and tools on portfolio management and business strategy, as well as legal, intellectual property and patent issues.
Knobbe Martens' attorneys presented on the following topic:
*Analyzing Recent Updates to the Hatch-Waxman Act to Grasp Future Impacts and Challenges
*Studying recent changes that could impact the industry, including 180-day exclusivity and complications regarding patent listings
*Drawing lessons from the close relationship between the patenting of generic products and FDA regulatory approval to pinpoint areas of improvement
*Considering the impact biosimilar products could have on market entry and patent strategies
*Reviewing both real-life rulings and hypotheticals regarding Hatch-Waxman litigation to identify future strategies
Paul Conover, Curtis Huffmire and Brent Babcock recently presented at the IN3 Medical Device Summit conference in San Francisco, CA. This presentation covers: recent patent cases from the supreme court, medical device patent statistics and cases, and USPTO Post-Grant Proceedings lessons learned after two years.
The extraordinary two-year legal saga of Pintrips has ended in a California U.S. federal court.
In a bench trial, a judge sided with Pintrips, ruling that the travel-planning site can’t be blocked from using its like-sounding name.
The judge found that Pintrips invented its name by its own efforts. He was persuaded by the evidence that “pin” has been a term in generic use among the computer savvy prior to the existence of Pinterest.
Two years ago Pinterest, which claims to be the country’s third-most visited social network, alleged that Pintrips chose a name similar to its own and thus infringed on its trademark.
But despite the risk of significant legal costs and distraction, Pintrips defended itself until the end, represented by the law firm Kenyon & Kenyon.
Georgetown Univ. Law Center Conference: Patent Law Developments in the Suprem...WilmerHale
From The Georgetown University Law Center Conference: The Changing Patent Landscape held on March 23, 2015.
This presentation covers:
- Patent Eligibility: The Alice Effect
- Attorney’s Fees: The Octane/Highmark Fallout
- Indefiniteness: The Nautilus Voyage
- Patent Damages: Reasonable royalties after VirnetX and D-Link
- Injunctive Relief: eBay, Apple/Samsung, and the ITC
- Inter Partes Reviews: The Gathering Appellate Storm
- The Next Wave: Teva, Commil, Kimble, Google
Presentation delivered during 9th Seminar on Media and the Digital Economy (21-22 March 2019).
http://fsr.eui.eu/event/annual-scientific-seminar-on-media-and-the-digital-economy-9th-edition/
This presentation by Maurits Dolmans from Cleary Gottlieb was made during a roundtable discussion on Competition, Intellectual Property and Standard Setting held at the 122nd meeting of the OECD Competition Committee on 17 December 2014. Find out more at http://www.oecd.org/daf/competition/competition-intellectual-property-standard-setting.htm
As represented by “Smartphone Patent Wars,” patents for smartphones became the most
important strategic competition tool among market leaders. Especially, patents for mobile
communication standards, which are the so-called ‘Standard Essential Patents (SEPs),’ became
the center of legal and policy debates regarding their intellectual property rights (IPRs).
The author provides the implications of recent courts’ resolutions regarding FRAND
(Fair, Reasonable And Non Discriminatory) disputes to the ICT (Information and
Communications Technology) industry and provide several alternative options for resolving
FRAND disputes. The author contends that the current concerted resolutions in courts and
regulation agencies can results in adverse effects to the ICT industry. The author also contends
the main drawback of the recent proposals to resolve the disputes surrounding SEPs through the
ex ante FRAND licensing and the ICT industry players’ voluntary collaboration. From the
analysis of ICT industry players’ response to the outcomes of court resolutions, the author
contends a compromising way to provide FRAND Royalty adopting arguments from both sides
of the disputes. The author also contends a practical improvement to the voluntary collaboration
proposals to resolve the disputes surrounding SEPs.
Illustration of the patent hold-up problem through the Rambus v. FTC trial
ECON 490 - University of Michigan - Fall 2014
Presentation by Jonathan Zimmermann
This presentation by Anne Layne-Farrar from Charles River Associates was made during a roundtable discussion on Competition, Intellectual Property and Standard Setting held at the 122nd meeting of the OECD Competition Committee on 17 December 2014. Find out more at http://www.oecd.org/daf/competition/competition-intellectual-property-standard-setting.htm
In this short presentation, I define standard essential patents and RAND using the Wi-Fi standard as an example.
Beyond a basic definition, however, this presentation touches on the practical ramifications (both at a legal and corporate/financial level) that may lead to the current, ongoing SEP-related court cases.
As the connected car market glows, LTE is becoming the main connectivity technology not only for the V2X (vehicle-to-vehicle, vehicle-to-person, vehicle-to- roadside unit) communications but also for providing value added services (e.g., infotainment).For example, the 2015 Audi A3 LTE connectivity service includes navigation with Google Earth and Street View, weather and event information. Thus, one may expect that the increasing use of LTE can make the automotive sector a new patent dispute battleground
Just how much device makers are on the hook for in patent licensing payouts is one of the most debated questions in the IP community. While a complete answer may remain elusive, an analytical approach can help manufacturers assess their risk.
Similar to Competition Law and SEP: Testing the Limits of Extra-Territorial Enforcement (20)
Antiglobalization and the future of antitrust enforcement across the world_Presentation at the second FCP Annual Conference, 20-21 October 2017, Florence
How Does CRISIL Evaluate Lenders in India for Credit RatingsShaheen Kumar
CRISIL evaluates lenders in India by analyzing financial performance, loan portfolio quality, risk management practices, capital adequacy, market position, and adherence to regulatory requirements. This comprehensive assessment ensures a thorough evaluation of creditworthiness and financial strength. Each criterion is meticulously examined to provide credible and reliable ratings.
Turin Startup Ecosystem 2024 - Ricerca sulle Startup e il Sistema dell'Innov...Quotidiano Piemontese
Turin Startup Ecosystem 2024
Una ricerca de il Club degli Investitori, in collaborazione con ToTeM Torino Tech Map e con il supporto della ESCP Business School e di Growth Capital
2. Elemental Economics - Mineral demand.pdfNeal Brewster
After this second you should be able to: Explain the main determinants of demand for any mineral product, and their relative importance; recognise and explain how demand for any product is likely to change with economic activity; recognise and explain the roles of technology and relative prices in influencing demand; be able to explain the differences between the rates of growth of demand for different products.
how to sell pi coins effectively (from 50 - 100k pi)DOT TECH
Anywhere in the world, including Africa, America, and Europe, you can sell Pi Network Coins online and receive cash through online payment options.
Pi has not yet been launched on any exchange because we are currently using the confined Mainnet. The planned launch date for Pi is June 28, 2026.
Reselling to investors who want to hold until the mainnet launch in 2026 is currently the sole way to sell.
Consequently, right now. All you need to do is select the right pi network provider.
Who is a pi merchant?
An individual who buys coins from miners on the pi network and resells them to investors hoping to hang onto them until the mainnet is launched is known as a pi merchant.
debuts.
I'll provide you the Telegram username
@Pi_vendor_247
Falcon stands out as a top-tier P2P Invoice Discounting platform in India, bridging esteemed blue-chip companies and eager investors. Our goal is to transform the investment landscape in India by establishing a comprehensive destination for borrowers and investors with diverse profiles and needs, all while minimizing risk. What sets Falcon apart is the elimination of intermediaries such as commercial banks and depository institutions, allowing investors to enjoy higher yields.
Seminar: Gender Board Diversity through Ownership NetworksGRAPE
Seminar on gender diversity spillovers through ownership networks at FAME|GRAPE. Presenting novel research. Studies in economics and management using econometrics methods.
how to sell pi coins in South Korea profitably.DOT TECH
Yes. You can sell your pi network coins in South Korea or any other country, by finding a verified pi merchant
What is a verified pi merchant?
Since pi network is not launched yet on any exchange, the only way you can sell pi coins is by selling to a verified pi merchant, and this is because pi network is not launched yet on any exchange and no pre-sale or ico offerings Is done on pi.
Since there is no pre-sale, the only way exchanges can get pi is by buying from miners. So a pi merchant facilitates these transactions by acting as a bridge for both transactions.
How can i find a pi vendor/merchant?
Well for those who haven't traded with a pi merchant or who don't already have one. I will leave the telegram id of my personal pi merchant who i trade pi with.
Tele gram: @Pi_vendor_247
#pi #sell #nigeria #pinetwork #picoins #sellpi #Nigerian #tradepi #pinetworkcoins #sellmypi
where can I find a legit pi merchant onlineDOT TECH
Yes. This is very easy what you need is a recommendation from someone who has successfully traded pi coins before with a merchant.
Who is a pi merchant?
A pi merchant is someone who buys pi network coins and resell them to Investors looking forward to hold thousands of pi coins before the open mainnet.
I will leave the telegram contact of my personal pi merchant to trade with
@Pi_vendor_247
Lecture slide titled Fraud Risk Mitigation, Webinar Lecture Delivered at the Society for West African Internal Audit Practitioners (SWAIAP) on Wednesday, November 8, 2023.
What website can I sell pi coins securely.DOT TECH
Currently there are no website or exchange that allow buying or selling of pi coins..
But you can still easily sell pi coins, by reselling it to exchanges/crypto whales interested in holding thousands of pi coins before the mainnet launch.
Who is a pi merchant?
A pi merchant is someone who buys pi coins from miners and resell to these crypto whales and holders of pi..
This is because pi network is not doing any pre-sale. The only way exchanges can get pi is by buying from miners and pi merchants stands in between the miners and the exchanges.
How can I sell my pi coins?
Selling pi coins is really easy, but first you need to migrate to mainnet wallet before you can do that. I will leave the telegram contact of my personal pi merchant to trade with.
Tele-gram.
@Pi_vendor_247
Competition Law and SEP: Testing the Limits of Extra-Territorial Enforcement
1. Competition Law and SEP: Testing the
Limits of Extra-Territorial Enforcement
Third FCP Annual Conference
12 October2018
Prof. Dr. Damien Geradin
2. AGENDA
• Antitrust enforcement and SEP licensing disputes in a global context:
‒ Challenges
‒ Potential solutions
• Enforcement of SEPs in a global context:
‒ Challenges
‒ The Unwired Planet v. Huawei E&W High Court judgment (2017)
‒ Background
‒ The FRAND remedy
‒ Criticism
• Conclusions
1
3. ANTITRUST ENFORCEMENT IN A GLOBAL CONTEXT
• Today, over 100 nations have developed competition law regimes and created enforcement
authorities.
• This has led to a process of “decentralized globalization”: antitrust is today a global
phenomenon, not through the adoption of supranational rules, such as in areas pertaining
to environmental protection, labor rights, or human rights, but through the adoption of
national rules often varying in scope, objectives, methods, and enforcement methodology.
• While the globalization of antitrust has major benefits, it also increases:
‒ the cost of doing business and the complexity of large-scale antitrust investigations, which now
often have a multi-jurisdictional component;
‒ the risk of contradictory decisions where a firm's behavior is reviewed by different antitrust
authorities under different sets of rules; and
‒ the likelihood that some decisions will be guided by protectionist motives.
• In addition, when multiple regimes apply to a given conduct, the strictest regime prevails.
This may lead to over-enforcement.
2
4. GLOBAL ANTITRUST ENFORCEMENT AND SEP LICENSING: THE CHALLENGES
• Global antitrust enforcement can also be witnessed in the SEP licensing field. For instance,
‒ Qualcomm has been investigated in several jurisdictions, including the EU, the US, Korea and
China.
• The fact that SEP holders are investigated in different jurisdictions is not entirely surprising
since their activities are global in scope.
• Many such investigations are focusing on unilateral conduct /abuse of dominance given
that SEP holders typically have market power in the markets for the licensing of their SEPs.
• The challenge with unilateral conduct / abuse of dominance investigations is that it this is
the area of competition law where jurisdictions may considerably differ in their assessment.
This is likely to lead to different outcomes with the strictest regimes ruling.
• The problem is compounded by the fact that remedies will often have extra-territorial
features.
• Moreover, antitrust authorities have different policy views regarding the role of
competition law in SEP licensing disputes. DAAG Delrahim is not aligned with his EU
counterpart on this issue.
• There is thus little harmony on the global stage as to how issues arising out of SEP licensing
should be dealt with. 3
5. GLOBAL ANTITRUST ENFORCEMENT AND SEP LICENSING: POTENTIAL
SOLUTIONS ?
• Greater antitrust convergence across jurisdictions is always desirable, but there are reasons
to believe that it will be hard to achieve with respect to SEP licensing in the future for the
following reasons:
‒ First, there is little harmony in the way unilateral conduct is dealt with across jurisdictions,
although a growing number of nations tend to follow the EU approach to the assessment of such
conduct.
‒ Second, while some of these differences may be a matter of competition policy, others are more
structural in nature. For instance,
‒ Article 102 TFEU and Section 2 of the Sherman do not have the same scope (e.g., exploitation is not a
concern under US antitrust law).
‒ Even an more “interventionist” DoJ or FTC would be limited in its action by U.S. federal courts, which have
increasingly restricted the scope of antitrust over the years.
• Some degree of convergence may, however, develop on issues that may or may not be
antitrust-related:
‒ Growing recognition that a balance between the interests of SEP holders and SEP implementers is
needed.
‒ Growing recognition that injunctions should not be excluded, but limited to certain circumstances
‒ Growing agreement on the type of methodologies that make sense to calculate FRAND royalties.
‒ Etc.
4
6. JUDICIAL ENFORCEMENT OF SEPs IN A GLOBAL CONTEXT
• As in the case of antitrust, a growing number of jurisdictions have developed proper IP law regimes.
• IP enforcement is pursued on a national basis because IP rights are territorial in nature.
• This means that in the case of major IP licensing disputes, the SEP holder will sue in several
jurisdictions.
‒ For instance, during their patent war, Apple and Samsung sued each other in the U.S., Korea,
Japan, Australia, France, Germany, Italy and the Netherlands.
• This may lead to different outcomes on both the technical level, but also the FRAND analysis.
• These problems are somewhat manageable as long as the courts remedies are limited to their
jurisdictions.
• A Dutch court may, for instance, grant an injunction to the SEP holder that the implementer can
escape by taking a license at FRAND terms for the Dutch SEPs.
• But what happens if Dutch court threatens the implementer with an injunction unless it takes a
global license at terms that are determined (for the entire world) by that court?
• This is the situation that has arisen in the Unwired Planet v. Huawei case.
5
7. UNWIRED PLANET v. HUAWEI: BACKGROUND
• Unwired Planet has a worldwide patent portfolio which includes patents which are declared
essential to various telecommunications standards (2G, 3G, and 4G LTE).
• Unwired Planet is a NPE: Most of its portfolio was acquired from Ericsson. Unwired Planet’s
business is licensing those patents to companies who make and sell telecommunications
equipment such as mobile phones and infrastructure.
• Action filed in E&W High Court when Unwired Planet sued Huawei, Samsung and Google for
infringement of six UK patents from their portfolio. Five were claimed to be SEPs. Unwired
Planet contended their patents were infringed and (so far as relevant) essential.
• Google and Samsung eventually settled with Unwired Planet. Huawei decided to litigate.
• Unwired Planet also sued in other jurisdictions (notably Germany and China), but the E&W
case progressed faster with a judgment adopted by Birss J. in April 2017.
• This judgment is currently under appeal.
6
8. UNWIRED PLANET v. HUAWEI: FRAND REMEDY (1)
• Although Justice Birss found that Huawei had infringed only two UK patents, he
nevertheless:
‒ ordered that unless Huawei enter into a worldwide license it would be injuncted in the United
Kingdom under the two patents found to be infringed; and also
‒ set the rates at which this license should be granted not only for Huawei’s sales in the UK, but also
for Huawei’s sales outside of the United Kingdom.
7
9. UNWIRED PLANET v. HUAWEI: FRAND REMEDY (2)
• Justice Birss justified this outcome based on the following propositions:
‒ Worldwide portfolio SEP licenses are very common in the industry.
‒ While Unwired Planet has many fewer patents in general than that of the biggest players like
Huawei, Samsung and Ericsson, its patent portfolio is large enough that it would be impractical to
fight over every patent.
‒ Country-by-country licensing is inefficient as it requires to negotiate and agree so many different
licences and then to keep track of so many different royalty calculations and payments. No
rational business would do this if it could be avoided.
‒ A FRAND licence should not prevent a licensee from challenging validity or essentiality of licensed
patents and should have provisions dealing with sales in non-patent countries.
‒ Thus, for instance, if the German courts (where Unwired Planet and Huawei are also litigating) decide all
the relevant patents are invalid (or not essential), that would simply result in whatever consequences the
worldwide licence provided for.
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10. UNWIRED PLANET v. HUAWEI: CRITICISM (1)
• Justice Birss’ approach that a national licence was not FRAND loses sight of the territorial
nature of patent proceedings.
‒ Whether an SEP holder is entitled to require an implementer to take a licence of its foreign
patents and pay worldwide royalties depends on whether those foreign patents are valid,
essential and infringed. The validity, essentiality and infringement of such patents can only be
determined by the relevant foreign courts, not be the UK court.
‒ It is hard to understand why a court which finds that a standard-compliant product breaches two
UK patents, should order an injunction against the manufacturer of that product unless it enters
into a worldwide license, despite the fact that the manufacturer agrees to pay the court-set
royalty rate for standard-compliant products sold in the UK.
• Justice Birss’ view that “country-by-country” litigation would be inefficient fails to have
regard to both commercial and legal realities.
‒ No-one is suggesting that patentees would need to litigate in each and every jurisdiction. There
are usually only a few jurisdictions that really matter in any given dispute. In the Unwired Planet v.
Huawei dispute, the jurisdiction of central commercial importance is China as this is where a large
part of Huawei’s sales are made.
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11. UNWIRED PLANET v. HUAWEI: CRITICISM (2)
• While a FRAND licence should not prevent a licensee from challenging validity or
essentiality of licensed patents, it would be unfair to ask implementers to challenge the
validity and essentiality of licensed SEPs in each and every country. This would also be
inefficient.
• Encouraging national patent courts, which have jurisdiction on the basis of questions
concerning the validity and infringement of domestic patents, to grant injunctions unless
standard implementers take worldwide licenses may create:
‒ significant issues of “forum shopping”.
‒ issues of “comity” when patent infringement and validity proceedings have been launched in
several jurisdictions.
• The UK High Court’s approach (that a national licence was not FRAND):
‒ Is not in line with the approach taken in other jurisdictions, including China, Japan and the U.S.
‒ Seems in tension with the European Commission’s 2014 Motorola decision where the Commission
also endorsed an SEP licence covering the territory of Germany as being FRAND. The Commission
held that the legitimate objective of an injunction in Germany was “to obtain appropriate
remuneration for Apple’s use of its telecommunication SEPs in Germany”, which objective was
fully met by a licence which “covered all Apple products infringing the licensed SEPs in Germany.”
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12. CONCLUSIONS
• While SEP holders and implementers usually operate on a global scale, enforcement of
antitrust and IP laws is still an intensely national process.
• This has several disadvantages:
‒ It increases costs for both claimants and defendants, and creates the risk of conflicting decisions.
‒ It encourages “forum shopping”.
• There is little prospect to see the creation of global antitrust or IP regimes, but greater
efforts should be made to ensure convergence:
‒ The development of SEP licensing guidelines by the European Commission, the JPO, etc. is a
positive step, especially since these policy documents seem to adopt a balanced approach
between the interests of SDEP holders and SEP implemementers.
‒ SSOs, which are international in scope, may also facilitate convergence and adopt measures that
can reduce the risks of SEP licensing disputes.
‒ ADR mechanisms, such as international arbitration, can also avoid the need for multiple,
overlapping actions in different jurisdictions.
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13. Thank you.
Belgium
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Euclid Law Ltd.
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