This document discusses vexatious litigation, which refers to the misuse of governmental processes like the judicial system for anticompetitive purposes. It provides examples of this from different jurisdictions and perspectives. The key issues addressed include determining what different standards various jurisdictions use to identify sham or vexatious litigation that violates antitrust laws, and balancing this with the fundamental right to access courts. Sources discussed include cases from the US, EU, Brazil and a WIPO study on the issue across multiple countries.
This document summarizes a presentation on determining whether licensing terms for standards-essential patents (SEPs) are fair, reasonable, and non-discriminatory (FRAND). It discusses the origins of FRAND commitments in antitrust decrees to promote competition. It also examines how FRAND compliance is measured using contract, damages, and competition law. Specifically, it analyzes what terms are subject to FRAND, and factors considered under the different legal standards like the Georgia-Pacific framework for reasonable royalties.
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.
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.
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.’’
This document discusses antitrust issues related to patent licensing and FRAND (fair, reasonable, and non-discriminatory) commitments. It provides an overview of US antitrust law on patent licensing and conditional refusals to license. It also examines how violations of FRAND commitments could constitute antitrust violations by unreasonably excluding competitors or restraining trade. Specifically, it analyzes how bundling patents to evade FRAND royalty rates or using injunction threats to avoid rate determinations could harm competition. Finally, it discusses private antitrust enforcement and remedies available to indirect purchasers for such FRAND/antitrust violations under US law.
Knobbe Martens Partners Catherine Holland, Lynda Zadra-Symes, Jeff Van Hoosear and Jonathan Hyman give insight into the major trademark law issues across multiple jurisdictions, covering: ownership and scope of trademarks, application for registration, appeal of failed applications, third-party opposition to registration, duration and maintenance of marks, assignment, markings, types of trademark enforcement proceedings, procedural format and timing, discovery, litigation costs, defenses and remedies and appeals.
Reproduced with permission from Law Business Research Ltd. This article was first published in Getting the Deal Through: Trademarks 2016, (published in September 2015) For further information please visit www.gettingthedealthrough.com.
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.
This document summarizes a presentation on determining whether licensing terms for standards-essential patents (SEPs) are fair, reasonable, and non-discriminatory (FRAND). It discusses the origins of FRAND commitments in antitrust decrees to promote competition. It also examines how FRAND compliance is measured using contract, damages, and competition law. Specifically, it analyzes what terms are subject to FRAND, and factors considered under the different legal standards like the Georgia-Pacific framework for reasonable royalties.
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.
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.
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.’’
This document discusses antitrust issues related to patent licensing and FRAND (fair, reasonable, and non-discriminatory) commitments. It provides an overview of US antitrust law on patent licensing and conditional refusals to license. It also examines how violations of FRAND commitments could constitute antitrust violations by unreasonably excluding competitors or restraining trade. Specifically, it analyzes how bundling patents to evade FRAND royalty rates or using injunction threats to avoid rate determinations could harm competition. Finally, it discusses private antitrust enforcement and remedies available to indirect purchasers for such FRAND/antitrust violations under US law.
Knobbe Martens Partners Catherine Holland, Lynda Zadra-Symes, Jeff Van Hoosear and Jonathan Hyman give insight into the major trademark law issues across multiple jurisdictions, covering: ownership and scope of trademarks, application for registration, appeal of failed applications, third-party opposition to registration, duration and maintenance of marks, assignment, markings, types of trademark enforcement proceedings, procedural format and timing, discovery, litigation costs, defenses and remedies and appeals.
Reproduced with permission from Law Business Research Ltd. This article was first published in Getting the Deal Through: Trademarks 2016, (published in September 2015) For further information please visit www.gettingthedealthrough.com.
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.
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
The Defend Trade Secrets Act of 2016 (DTSA) creates a federal civil cause of action for trade secret misappropriation and allows companies to file lawsuits in federal court. It expands protection of valuable intellectual property like customer lists, source code, formulas and manufacturing methods. The new law does not replace state laws but provides an additional avenue for protection and enforcement of trade secrets. Employers should notify employees about whistleblower protections under the DTSA and implement security measures like non-disclosure agreements and access controls to protect valuable proprietary information.
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
The U.S. Supreme Court recently made a significant change to the geographic location where patent infringement lawsuits may be filed. In TC Heartland v. Kraft Food Groups, decided on May 22, 2017, the Supreme Court unanimously limited the venue for patent suits against domestic corporations to either (1) the defendantʼs state of incorporation, or (2) where the defendant has a regular place of business and committed allegedly infringing acts. This decision represents a break from 30
years of precedent that allowed patent owners to sue essentially anywhere in the U.S. that the defendant sold the allegedly infringing products.
By Nicholas Zovko and Brandon Smith, Knobbe Martens
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
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.
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.
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.”
Things to Consider Before You File (Series: IP 301 Post-Grant Review Trials 2...Financial Poise
This segment will delve into considerations that come into play when filing or responding to post-grant review proceedings. These considerations include issues of real party in interest, timing, and substantive arguments.
To view the accompanying webinar, go to: https://www.financialpoise.com/financial-poise-webinars/things-to-consider-before-you-file-2020/
Priority under the Paris Convention: Are National/Regional "Sonderwege" Accep...Patterson Thuente IP
The US approach is more flexible than the EPO approach, but
still aims to ensure a substantive connection between the priority
application and the later application claiming priority. Both aim to balance
certainty with fairness in determining valid priority claims.
This document provides summaries of several regulatory and professional bodies within the UK creative media sector, including the British Board of Film Classification (BBFC), British Video Association (BVA), Film Distributors Association (FDA), Video Standards Council (VSC), Office of Communications (Ofcom), Trading Standards Central, Press Complaints Commission (PCC), and Advertising Standards Authority (ASA). It outlines the roles and responsibilities of each organization in classifying, regulating, and enforcing standards within their respective areas of the media industry.
This document discusses business method patents in the US and EU. It outlines key developments, including the removal of the business method exception in the US post-State Street, which led to a rush of applications. The EU initially consulted on harmonizing with the US but maintained the technical contribution requirement. The Bilski ruling rejected the State Street test but left questions open for future cases to address.
The document summarizes several regulatory and professional bodies within the UK creative media sector, including:
- The British Board of Film Classification (BBFC) which classifies films, videos, and DVDs according to age ratings.
- The British Video Association (BVA) which represents video publishers and works to promote legal video entertainment.
- The Film Distributors' Association (FDA) which focuses on addressing film piracy in the UK.
- The Video Standards Council (VSC) which sets standards for the video and video games industries and administers the PEGI age rating system for video games in the UK.
- Ofcom which regulates TV, radio, telecommunications and postal sectors
This document summarizes key information about intellectual property (IP) ownership and common IP issues. It discusses the main types of IP - copyrights, trademarks, and patents. For each it provides examples of common problems like unclear licensing terms, failure to register trademarks, and missed patent deadlines. The document aims to help people understand IP rights and avoid infringement claims by clarifying ownership upfront.
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
PELTON PowerPoint: ABA Cyberspace Institute 2011-01-28erikpelton
"Trademark Strategies for 2012" Presentation to the American Bar Association's Cyberspace Institute in Austin Texas on January 28, 2011. The presentation explores recent changes to the practice of trademark law, and what the future might hold for trademark owners and attorneys who advise them.
Deciding who decides in conflict of laws: an institutional perspectivePaulius Jurcys
This document discusses applying a comparative institutional perspective to private international law (PIL). It summarizes Neil Komesar's institutional choice framework, which examines how different institutions like markets, courts, and political processes address problems and their limitations. Two case studies on employee inventions and international patent litigation between Apple and Samsung illustrate how these institutions interact to resolve cross-border issues. The document concludes that while efficiency remains important, a comparative institutional approach provides new insights into PIL and directions for facilitating interfaces between legal and socio-economic systems.
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
This document summarizes recent developments regarding patent pools and standard essential patents (SEPs) in various jurisdictions. It discusses how the European Commission and US Department of Justice have increased scrutiny of patent pools to ensure they do not restrict competition or innovation. A key US case determined a framework for calculating fair, reasonable and non-discriminatory (FRAND) royalty rates for SEPs, emphasizing the actual value of patents rather than their inclusion in a standard. European cases found seeking injunctions against a "willing licensee" to be anticompetitive where the licensee was willing to pay FRAND rates.
This module discusses investigating trademark and copyright infringement. It begins with an overview of trademarks, copyrights, and the differences between them. It then covers investigating trademark infringement, including monitoring for infringements, key considerations, and steps to take. It discusses copyright infringement and how copyrights are enforced through lawsuits. The module also covers plagiarism as a form of copyright infringement, types of plagiarism, and tools to detect plagiarism including Turnitin, CopyCatch, and other academic tools.
Intellectual property rights are important for start-ups to protect their innovations. The document discusses various types of intellectual property protections available in Sri Lanka including copyright, patents, trademarks, industrial designs, undisclosed information, integrated circuit layout designs, and unfair competition. It provides details on eligibility requirements, protected subject matter, rights conferred, and enforcement mechanisms for each type of intellectual property.
This document discusses intellectual property, copyright, and ethics as they relate to teachers and students. It defines intellectual property and copyright, noting that copyright protects literary and artistic works. It outlines what types of works are and aren't covered by copyright and discusses limitations like fair use exemptions. The document also discusses the World Intellectual Property Organization (WIPO) and its goals of promoting global intellectual property protection and facilitating its use for development. It defines fair use as permission to use some copyrighted works if certain criteria are met, including the purpose, nature, amount, and effect of the use.
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
The Defend Trade Secrets Act of 2016 (DTSA) creates a federal civil cause of action for trade secret misappropriation and allows companies to file lawsuits in federal court. It expands protection of valuable intellectual property like customer lists, source code, formulas and manufacturing methods. The new law does not replace state laws but provides an additional avenue for protection and enforcement of trade secrets. Employers should notify employees about whistleblower protections under the DTSA and implement security measures like non-disclosure agreements and access controls to protect valuable proprietary information.
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
The U.S. Supreme Court recently made a significant change to the geographic location where patent infringement lawsuits may be filed. In TC Heartland v. Kraft Food Groups, decided on May 22, 2017, the Supreme Court unanimously limited the venue for patent suits against domestic corporations to either (1) the defendantʼs state of incorporation, or (2) where the defendant has a regular place of business and committed allegedly infringing acts. This decision represents a break from 30
years of precedent that allowed patent owners to sue essentially anywhere in the U.S. that the defendant sold the allegedly infringing products.
By Nicholas Zovko and Brandon Smith, Knobbe Martens
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
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.
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.
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.”
Things to Consider Before You File (Series: IP 301 Post-Grant Review Trials 2...Financial Poise
This segment will delve into considerations that come into play when filing or responding to post-grant review proceedings. These considerations include issues of real party in interest, timing, and substantive arguments.
To view the accompanying webinar, go to: https://www.financialpoise.com/financial-poise-webinars/things-to-consider-before-you-file-2020/
Priority under the Paris Convention: Are National/Regional "Sonderwege" Accep...Patterson Thuente IP
The US approach is more flexible than the EPO approach, but
still aims to ensure a substantive connection between the priority
application and the later application claiming priority. Both aim to balance
certainty with fairness in determining valid priority claims.
This document provides summaries of several regulatory and professional bodies within the UK creative media sector, including the British Board of Film Classification (BBFC), British Video Association (BVA), Film Distributors Association (FDA), Video Standards Council (VSC), Office of Communications (Ofcom), Trading Standards Central, Press Complaints Commission (PCC), and Advertising Standards Authority (ASA). It outlines the roles and responsibilities of each organization in classifying, regulating, and enforcing standards within their respective areas of the media industry.
This document discusses business method patents in the US and EU. It outlines key developments, including the removal of the business method exception in the US post-State Street, which led to a rush of applications. The EU initially consulted on harmonizing with the US but maintained the technical contribution requirement. The Bilski ruling rejected the State Street test but left questions open for future cases to address.
The document summarizes several regulatory and professional bodies within the UK creative media sector, including:
- The British Board of Film Classification (BBFC) which classifies films, videos, and DVDs according to age ratings.
- The British Video Association (BVA) which represents video publishers and works to promote legal video entertainment.
- The Film Distributors' Association (FDA) which focuses on addressing film piracy in the UK.
- The Video Standards Council (VSC) which sets standards for the video and video games industries and administers the PEGI age rating system for video games in the UK.
- Ofcom which regulates TV, radio, telecommunications and postal sectors
This document summarizes key information about intellectual property (IP) ownership and common IP issues. It discusses the main types of IP - copyrights, trademarks, and patents. For each it provides examples of common problems like unclear licensing terms, failure to register trademarks, and missed patent deadlines. The document aims to help people understand IP rights and avoid infringement claims by clarifying ownership upfront.
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
PELTON PowerPoint: ABA Cyberspace Institute 2011-01-28erikpelton
"Trademark Strategies for 2012" Presentation to the American Bar Association's Cyberspace Institute in Austin Texas on January 28, 2011. The presentation explores recent changes to the practice of trademark law, and what the future might hold for trademark owners and attorneys who advise them.
Deciding who decides in conflict of laws: an institutional perspectivePaulius Jurcys
This document discusses applying a comparative institutional perspective to private international law (PIL). It summarizes Neil Komesar's institutional choice framework, which examines how different institutions like markets, courts, and political processes address problems and their limitations. Two case studies on employee inventions and international patent litigation between Apple and Samsung illustrate how these institutions interact to resolve cross-border issues. The document concludes that while efficiency remains important, a comparative institutional approach provides new insights into PIL and directions for facilitating interfaces between legal and socio-economic systems.
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
This document summarizes recent developments regarding patent pools and standard essential patents (SEPs) in various jurisdictions. It discusses how the European Commission and US Department of Justice have increased scrutiny of patent pools to ensure they do not restrict competition or innovation. A key US case determined a framework for calculating fair, reasonable and non-discriminatory (FRAND) royalty rates for SEPs, emphasizing the actual value of patents rather than their inclusion in a standard. European cases found seeking injunctions against a "willing licensee" to be anticompetitive where the licensee was willing to pay FRAND rates.
This module discusses investigating trademark and copyright infringement. It begins with an overview of trademarks, copyrights, and the differences between them. It then covers investigating trademark infringement, including monitoring for infringements, key considerations, and steps to take. It discusses copyright infringement and how copyrights are enforced through lawsuits. The module also covers plagiarism as a form of copyright infringement, types of plagiarism, and tools to detect plagiarism including Turnitin, CopyCatch, and other academic tools.
Intellectual property rights are important for start-ups to protect their innovations. The document discusses various types of intellectual property protections available in Sri Lanka including copyright, patents, trademarks, industrial designs, undisclosed information, integrated circuit layout designs, and unfair competition. It provides details on eligibility requirements, protected subject matter, rights conferred, and enforcement mechanisms for each type of intellectual property.
This document discusses intellectual property, copyright, and ethics as they relate to teachers and students. It defines intellectual property and copyright, noting that copyright protects literary and artistic works. It outlines what types of works are and aren't covered by copyright and discusses limitations like fair use exemptions. The document also discusses the World Intellectual Property Organization (WIPO) and its goals of promoting global intellectual property protection and facilitating its use for development. It defines fair use as permission to use some copyrighted works if certain criteria are met, including the purpose, nature, amount, and effect of the use.
IP-No: The Case Against a Facebook Public Offering Captain73
Presented by: Kirill Gourov, Benjamin Eng, Michael Ortiz, and Derek Ku
▪ Presented a case with regards to the Facebook IPO for Second Place in Alpha Kappa Psi's Annual Case Competition
▪ Proposed corporate restructuring to an Employee Stock Ownership Plan, decreasing shareholder count and allowing investor exits with a Section 1042 Rollover
As end-points become detached from the physical infrastructure and are mobile, the routing infrastructure is challenged to evolve from a topology centric addressing model to a more flexible architecture. This new architecture is capable of allowing IP addresses to freely and efficiently move across the infrastructure.
There are several ways of adding mobility to the IP infrastructure, and each of them addresses the problem with different degrees of effectiveness.
IP Telephony (IPT) is now firmly established as a viable business communications technology. However, given the high cost of implementation, IT leaders still struggle to make the case to upgrade aging legacy PBX systems. This solution set will help you:
•Gauge IPT appropriateness.
•Understand the costs, benefits and risks.
•Move forward with the IPT proposal.
Include non-financial factors in the IPT proposal, including improved operational flexibility and access to new features. If you can’t communicate the business value of these areas, you won’t be successful.
Intellectual property refers to creations of the mind such as inventions, literary works, designs, symbols, and names. Copyright is a legal term that protects original works including novels, films, music, and photographs from being copied without permission. The World Intellectual Property Organization (WIPO) is a United Nations agency dedicated to developing an accessible international intellectual property system that balances protection with public interests like fair use, which allows limited use of copyrighted material for purposes like commentary.
The document discusses international trademark rights and parallel imports. It provides definitions and explanations of key concepts such as intellectual property rights, trademarks, territoriality of trademarks, and the doctrine of exhaustion of IP rights. The doctrine of exhaustion holds that intellectual property rights are exhausted after the first sale of a good. The document also discusses different approaches countries take regarding national exhaustion versus international exhaustion of rights and exceptions related to parallel imports.
Intellectual Property, Copyright, and Ethicsakia38321
This document discusses intellectual property, copyright, ethics, and fair use. It defines intellectual property as creations of the mind like inventions, literary works, names, and images. Copyright is described as legal rights given to creators for their artistic works, including rights to reproduce, derive from, distribute, perform, and display the work. The document also discusses ethics as the study of morality, the World Intellectual Property Organization (WIPO) and its role in developing international intellectual property systems, and the concept and factors of fair use for copyrighted materials.
Patent Basics and Intellectual Property Rights Rahul Dev
The document discusses intellectual property rights (IPR) and intangible assets. It provides examples of patents, including brief descriptions. It notes that intangible assets do not exist in the physical world but can be characterized, valued, owned, transferred, and monetized. Brand image, secret formulas, and user bases are identified as some of the most valuable intangible assets, often worth more than physical plants and servers. Patents, trademarks, and copyrights are described as key types of intangible assets that can build brands and provide legal protection.
This document provides an overview of medical ethics and its principles. It begins with introducing the concept of medical ethics, its importance and branches. It then discusses in detail the key principles of medical ethics - autonomy, beneficence, confidentiality, non-maleficence, and justice. It also outlines various ethical codes and regulations that guide medical practice, including the Hippocratic Oath, Declaration of Geneva, and ICMR guidelines. The document concludes by discussing public health ethics, research ethics, and punishment for misconduct.
Vietnam has improved its legal framework for intellectual property rights (IPR) protection since joining the WTO. However, enforcement remains a challenge, especially for online IPR infringements. The document provides recommendations to further strengthen IPR protection in Vietnam, including increasing administrative fines, adopting a domain name dispute resolution system, raising public awareness of online IPR, and establishing specialized IPR courts to improve civil enforcement.
March 5, 2013 Webinar - ISP Liability in Europe and in the USCobaltSophie
This document discusses developments in Europe and the US regarding ISP liability for copyright and trademark infringement by third parties. It provides an overview of:
1) The key regulations governing online service provider (OSP) liability in the EU and US, including the DMCA and EU E-Commerce Directive, which establish similar frameworks of limited liability for OSPs.
2) How US and EU courts have interpreted these frameworks differently, with the EU taking a broader view of concepts like knowledge standard and response obligations.
3) Best practices for rightsholders and platforms to address this globally, including considering the broader EU standards given its role as a common market.
Online trademark infringement and the liability of intermediariesIshan Gupta
This document discusses online trademark infringement and the liability of intermediaries. It begins by providing background on the scale of counterfeit goods sold online and how globalization through the internet has caused issues. It then examines standards in different jurisdictions regarding intermediary liability for trademark infringement and compares them to laws in India. The document analyzes theories of secondary liability and how courts in the US, EU, Germany and India have addressed holding intermediaries liable. It discusses the pros and cons of intermediary liability and concludes more international standards are needed to balance trademark owner and intermediary interests given conflicts between national laws.
Online trademark infringement and the liability of intermediariesIshan Gupta
This document discusses online trademark infringement and the liability of intermediaries. It begins by providing background on the large scale of counterfeit goods sold online and how trademarks represent brand identity. The objective is to study standards across jurisdictions regarding online trademark infringement and compare to laws in India. It then examines concepts like secondary liability and how different regions like the US and EU approach holding intermediaries liable for infringement through their platforms. The document concludes by discussing the pros and cons of intermediary liability and need for balance and international standards.
Npe antitrust challenges - writing sampleBinQiang Liu
This document discusses antitrust challenges related to non-practicing entities (NPEs) and their patent acquisition and trading activities. It begins by defining NPEs and noting that antitrust cases in the EU and US have established that NPE patent deals can be subject to antitrust scrutiny. The document then reviews some notable ex-ante and ex-post antitrust investigations of patent acquisitions and transfers in Europe and America to provide context. It argues that the impact of NPEs needs to be evaluated on a case-by-case basis and that regulating NPE behavior through antitrust laws presents challenges that require innovative solutions.
Methods to improve Freedom to Operate analysisDauverC
This document discusses improving freedom to operate (FTO) analysis through comprehensive risk assessment and targeted patent searching. It provides an overview of patent filing trends, litigation statistics in key regions like the US and Europe, and a business case study on conducting an FTO analysis for a proposed fuel tank product. New semantic search technologies available in tools like PatentOptimizer can help enable more precise and recall patent searches to better inform FTO evaluations.
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2. Sources
•
•
Barbosa, Denis Borges, A criação de um ambiente
competitivo no campo da propriedade intelectual o
caso sul americano, UNCTAD, 2005, found at
http://www.iprsonline.org/unctadictsd/docs/Barbo
sa%20FINAL%20formatado.pdf
Salgado, Lucia Helena and Morais, Rafael Pinho
de, A New Test for Anticompetitive
Litigation, Available at:
http://works.bepress.com/lucia_salgado/22
•
•
SALGADO, L. H. , BARBOSA, D. B. , ZUCOLOTO G.
Study on The Anticompetitive Enforcement of
Intellectual Property Rights: Sham Litigation.
Geneva, 2011. (available at
http://www.wipo.int/meetings/en/2011/wipo_ip_g
e_11/docs/study.pdf)
SALGADO, L. H. , BARBOSA, D. B. , ZUCOLOTO G.
(2012) Litigância Predatória no Brasil, Radar
22, Ipea, Brasília, 2012. (Available at
http://www.ipea.gov.br/portal/images/stories/PDF
s/radar/121114_radar22.pdf)
3. Sources
•
•
•
•
•
Simonetta Vezzoso, Towards an EU Doctrine of Anticompetitive IPRelated Litigation Journal of European Competition Law &
Practice (2012) 3 (6): 521-535 first published online October
25, 2012 doi:10.1093/jeclap/lps058
Ioannis Lianos & Rochelle C. Dreyfuss, New Challenges in the Intersection
of Intellectual Property Rights with Competition Law - A View from
Europe and the United States, April 2013, found at
http://www.ucl.ac.uk/cles/research-paper-series/research-papers/cles4-2013, visted June 12, 2013.
KLEIN, Christofer C. “Economics of Sham Litigation: Theory, Cases
and Policy”, Bureau of Economics Staff Report to the Federal Trade
Commission, April 1989.
RICKARDSSON, Ola. Patent misuse and ‘sham’ – Development of new
principles under EU competition law, Master thesis presented to the
Faculty Of Law, Lund University, 2010. Found at
http://lup.lub.lu.se/luur/download?func=downloadFile&recordOId=1678
737&fileOId=1728683, visited 12/12/2010
Bo Vesterdorf, IP Rights and Competition Law Enforcement
Questions, Journal of European Competition Law & Practice first
published online February 7, 2013doi:10.1093/jeclap/lpt005
5. Vexing through IP
• What is it
• the "use [of] the
governmental process as opposed to the
outcome of that process
- as an anticompetitive
weapon
• Columbia v. Omni Outdoor
Advertising, Inc., 499 U.S. 365, 380
For instance:
1. Use of the judicial system for
anticompetitive purposes
2. Obtain IPR under false pretenses
7. Vexing through IP
Right to
Petition
ITT Promedia “wholly exceptional
circumstances”
US Response to WIPO study:
“This standard is difficult to
meet, and very few cases have met
the stringent test for this
exception.”
The importance of the constitutional enablement overweights most vexation
8. Vexing through IP
IP scope
of rights
As IP enforces interests through exclusive
rights in competitive environments, there
must be an proper extension where the
use of such exclusive rights are protected
against antitrust concerns.
• The intersection between competition law and IP occurs in two ways:
• either the exclusive rights upon creations are the effective cause of the
damage to competition,
• or are mere accessories, even though relevant, of one effective or potentially
damageable practice. (…)
• Regarding cases in which the IP law is the cause of a tort or potential tort to
competition, the authors indicate the presence of an accepted rule according
which the regular use of an exclusive right does not presume an illegal restriction
to competition, but also does exclude possibility of anti-competition effects
•
Barbosa 2005
Antitrust as a “second tier” remedy in face of the inherent IP filters
9. Vexing through IP
IP scope
of rights
FEDERAL TRADE COMMISSION v.
ACTAVIS, INC., SCOTUS June 17, 2013
Although the anticompetitive effects of the
reverse settlement agreement might fall
within the scope of the exclusionary
potential of Solvay’s patent, this does not
immunize the agreement from antitrust
attack.
(As LUNDBECK learned form European Commission on
June 19, 2013)
Antitrust as a “second tier” remedy in face of the inherent IP filters
10. Vexing through IP
Sham/Vexatious litigation stays being a real
problem in face of the Patent Assertion Entities
(“PAEs”) issue and FRAND/RAND situations?
But in the EU
environment, Scarlett
(2011) and Google
Motorola (2013) ITT
Promedia standards
were referred to and
enforced
12. An Brazilian Example
• The first conviction in a purely
anticompetitive litigation (or
sham litigation) case in
intellectual property arena
dealt with the anticompetitive
abuse of copyrights in sales TV
channels, the Shop Tour case
(CADE PA 08012.004283/200040)(December, 2010)
One of the rare cases where vexatious litigation was actually found
13. An Brazilian Example
•
•
•
•
•
“The Brazilian decision on the Shop Tour case (PA
08012.004283/2000-40) taken on 15/12/2010 is the
first conviction in Brazil for sham litigation and
seems to be the only recent conviction worldwide. It
sheds some light on the topic.
The case dealt with sham litigation concerning
bringing lawsuits against competitors in the sales TV
channels segment for alleged violations of copyrights
on the scripts of those sales opportunity shows.
The decision reviewed the history of all lawsuits
involved – as the respondent claimed it had won several
of them. The decision pointed out that all those
victories in first instance were reversed at upper courts
when appealed.
This was enough to dismiss the defense argument
and characterize that the respondent could not
reasonably expect to win those suits and therefore they
were a sham aimed at excluding competitors by
claiming false abuses of IP”.
Salgado/Morais
14. Once blood was tasted, Brazilian
antitrust craves on sham
• Finally, there had been five
investigations open for years on
anticompetitive litigation in the
pharmaceutical industry. On
December 5th 2011, three of them
have been concluded and sent to
CADE for judgment, with a
recommendation for conviction
Salgado, Lucia Helena and Morais, Rafael Pinho de, The
new Brazilian Antitrust Law: beyond the basics, found at
http://www.cresse.info/uploadfiles/2012_PAR2_1_PAP.pdf
15. The WIPO Study
Where else the issue is being dealt with (beyond US
and EU)
•
•
•
•
•
•
•
•
•
•
•
•
Mexico
Spain
South Korea
Argentina
Australia
New Zealand
France
South Africa
Canada
Chile
Peru
Brazil
16. The WIPO Study
What the scope of the study
•
•
•
•
•
"The administrative or judicial procedures concerning any of
the rights covered by Article 1.1 of TRIPs, brought to the
attention of Intellectual Property authorities or antitrust
agencies, where at least one of the following aspects is
conspicuously present:
(a) procedures where the final favorable prospects for
plaintiff (or requiring party) is evidently improbable, but the
initiation or continuation of the procedure by itself is liable to
have anticompetitive effects OR
(b) procedures multiplied on the same or closely related
causes of action where such reiteration of actions or requests
(even though each one action or request by itself would be
procedurally reasonable) also is liable to have anticompetitive
effects OR
(c) other actions, initiatives of requests where the benefit to
plaintiff or requesting party could result from the initiation or
continuation of the procedure itself rather than the final result
of the exercise, and such initiation or continuance by itself is
liable to have anticompetitive effects; OR
(d) any actions, initiatives of requests, which under domestic
law is classifiable as abuse of right or abuse of process, and
such abuse is liable to have anticompetitive effects. "
18. The use of the governmental process as an
anticompetitive weapon
•
55 The Commission states that, in order to be able to determine the cases in
which such legal proceedings are an abuse, it laid down two cumulative criteria
in the contested decision: it is necessary that the action
–
–
•
cannot reasonably be considered as an attempt to establish the rights of the undertaking
concerned and can therefore only serve to harass the opposite party and
it is conceived in the framework of a plan whose goal is to eliminate competition
(hereinafter `the two cumulative criteria').
56 According to the Commission, under the first of the two criteria the action
must, on an objective view, be manifestly unfounded. The second criterion
requires that the aim of the action must be to eliminate competition. Both
criteria must be fulfilled in order to establish an abuse. The fact that
unmeritorious litigation is instituted does not in itself constitute an infringement
of Article 86 of the Treaty unless it has an anti-competitive object.
Equally, litigation which may reasonably be regarded as an attempt to assert
rights vis-à-vis competitors is not abusive, irrespective of the fact that it may be
part of a plan to eliminate competition.
– Case T-111/96, ITT Promedia NV v Commission of the European Communities.
Judgment of the Court of First Instance (Fourth Chamber, extended composition) of
17 July 1998. European Court reports 1998, Page II-02937, visited 12/12/2010, found
at http://eurlex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexplus!prod!CELEXnumdoc&lg=en&
numdoc=61996A0111
19. The use of the governmental process as an
anticompetitive weapon
•
•
Case T-119/09, Protégé
International Ltd, v.
Commission
européenne, 13
September 2012.
“the action must
be objectively
unreasonable or
manifestly
unfounded”
72 (…) legal proceedings can be characterised as an
abuse, within the meaning of Article 86 of the Treaty, only if
they cannot reasonably be considered to be an attempt to
assert the rights of the undertaking concerned and can
therefore only serve to harass the opposing party. (…)
73 Furthermore, when applying that criterion, it is not a
question of determining whether the rights which the
undertaking concerned was asserting when it brought its action
actually existed or whether that action was well founded, but
rather of determining whether such an action was intended to
assert what that undertaking could, at that moment, reasonably
consider to be its rights. According to the second part of that
criterion, as worded, it is satisfied solely when the action did
not have that aim, that being the sole case in which it may be
assumed that such action could only serve to harass the
opposing party.
– Case T-111/96, ITT Promedia NV v Commission of the European
Communities. Judgment of the Court of First Instance (Fourth
Chamber, extended composition) of 17 July 1998. European
Court reports 1998, Page II-02937, visited 12/12/2010, found at
http://eurlex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexplus!prod!CE
LEXnumdoc&lg=en&numdoc=61996A0111
20. The use of the governmental process as an
anticompetitive weapon
•
•
•
•
•
•
•
•
General Court in ITT Promedia and Protége International. The General
Court found in those two cases
(i) that access to courts is a fundamental right and
(ii) that only in wholly exceptional circumstances may the fact that
legal proceedings are brought constitute an abuse of dominance.
The Court then went on to indicate—confirming the Commission's
approach in that case (the ITT case)—two cumulative criteria on the
basis of which one may identify an abuse in bringing legal action
before the courts.
The first criterion is that the legal action cannot reasonably be
considered to be an attempt to assert the rights of the undertaking
and can therefore only serve to harass the opposing party and
the second criterion that the legal action was taken in the framework
of a plan whose goal was to eliminate competition.
The Court then explicitly stated that those two criteria must be
interpreted and applied restrictively since they are an exception to the
general and fundamental rule of right of access to courts.
Vesterdorf
21. The use of the governmental process as an
anticompetitive weapon
• Therefore, the first prong of the test displays an
objective standard: plaintiff’s legal position at
the inception of the action should be evaluated
as whether it reasonably could consider claim in
action as to be its rights.
• There should be no inquiry as to the subjective
conditions of the plaintiff, as is just necessary to
determine whether a person at that
moment, canvassing the corresponding factual
and legal material, would reasonably conclude
that the rights claimed were actually his.
• Salgado/Barbosa/Zucoloto
22. The use of the governmental process as an
anticompetitive weapon
• The second prong, however, by requiring the
demonstration of “a framework of a plan”,
that is to say, a deliberate and purposeful set
of actions, the goal of which is eliminate
competition, enters necessarily in a
subjective level.
Salgado/Barbosa/Zucoloto
23. The use of the governmental process as an
anticompetitive weapon
•
•
•
•
•
The Pfizer Case
“After completion of the Sector Inquiry, national competition authorities within
the EU have been increasingly monitoring the pharmaceutical sector. On 11
January 2012, the Italian Competition Authority (ICA) fined Pfizer more than
€10m for an alleged infringement of Article 102 TFEU. (…)
The ICA argued that the plan was essentially based on artificially extending the
duration of Pfizer's patent protection beyond the expiring date of the basic
patent due in 2009 through the filing of an application for a divisional patent
and requesting an SPC in Italy. This created a state of legal uncertainty as to the
possibility of legally marketing new generic products that delayed market entry
by generics companies in the glaucoma eye treatment market. Pfizer's actions
led to uncertainty as to whether the generics companies could legally market
their own versions of the drug, as well as rendering commercialisation of the
generic versions more expensive.
On 3 September 2012, however, the Lazio administrative court reversed the
decision by the ICA. According to the Italian court, the ICA failed to prove “a
clear exclusionary intent in light of a quid pluris further to the mere summation
of behaviors regarded as legitimate by the administrative and judicial system”
Vezzoso
25. The use of the governmental process as an
anticompetitive weapon
– Noerr-Pennington rule: In essence, the right of
petition is exempted from antitrust
concerns, unless utilized in a sham manner.
26. The use of the governmental process as an
anticompetitive weapon
• As examples of such misuse of a Governmental process, the U.S. case
law offers:
– a frivolous objections to the license application of a competitor, with no
expectation of achieving denial of the license but simply in order to impose
expense and delay. California Motor Transport Co. v. Trucking Unlimited, 404 U.S.
508 (1972).
– A "sham" situation involves a defendant whose activities are "not genuinely
aimed at procuring favorable government action" at all, Allied Tube & Conduit
Corp. v. Indian Head, Inc., 486 U.S. 492, 500 , n. 4 (1988),
– But there would be no sham in a case where the petitioner “genuinely seeks to
achieve his governmental result, but does so through improper means” . Allied
Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492, 500 , n. 4 (1988), at
508, n. 10 (quoting Sessions Tank Liners, Inc. v. Joor Mfg., Inc., 827 F.2d
458, 465, n. 5 (CA9 1987)). [499 U.S. 365, 381]
27. The use of the governmental process as an
anticompetitive weapon
• Current legal analysis discerns three conflicting interests whenever the
right to petition is deemed to carry an anticompetitive burden:
• These tenets are:
• (1) The right of citizens to petition the government for redress of
grievances,
• (2) The ability of the government to protect the integrity of its processes
which provide the structural framework permitting a democratic form of
governance, and
• (3) The need for competition in the marketplace in order to drive a
capitalistic economy
• J.B. Perrine, Defining the “Sham Litigation” Exception to the NoerrPennington Antitrust Immunity Doctrine: An Analysis of the Professional
Real Estate Investors v. Columbia Pictures Industries Decision, 46 ALA. L.
REV. 815 (1995).
28. The use of the governmental process as an
anticompetitive weapon
•
•
•
Eventually the case law elaborated a set of tests for determining which were
those unfounded and meritless petitions. Following such tests, the Noerr
exemption from antitrust screening would be denied wherever a petition was
held to lack two cumulative requirements:
in those cases where no reasonable litigant could realistically expect success on
the merits; and
Whether the baseless suit conceals "an attempt to interfere directly" with a
competitor's business relationships.
–
–
An important case was California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508 (1972). “California
Motor played a significant role in the development of both the Noerr doctrine and the sham exception. It
more firmly established the constitutional basis for the doctrine, extended the doctrine to the judicial
context, and actually applied the sham litigation exception for the first time”. 46 Ala. L. Rev. 815, 824
“Litigation cannot be deprived of immunity as a sham unless it is objectively baseless. This Court's decisions
establish that the legality of objectively reasonable petitioning "directed toward obtaining governmental [508
U.S. 49, 50] action" is "not at all affected by any anticompetitive purpose [the actor] may have had." Id., at
140. Thus, neither Noerr immunity nor its sham exception turns on subjective intent alone. See, e.g., Allied
Tube Conduit Corp. v. Indian Head, Inc., 486 U.S. 492, 503 . Rather, to be a "sham," litigation must meet a
two-part definition. First, the lawsuit must be objectively baseless in the sense that no reasonable litigant
could realistically expect success on the merits. Only if challenged litigation is objectively meritless may a
court examine the litigant's subjective motivation. Under this second part of the definition, a court should
focus on whether the baseless suit conceals "an attempt to interfere directly" with a competitor's business
relationships, Noerr, supra, at 144, through the "use [of] the governmental process - as opposed to the
outcome of that process - as an anticompetitive weapon," Columbia v. Omni Outdoor Advertising, Inc., 499
U.S. 365, 380 . This two-tiered process requires a plaintiff to disprove the challenged lawsuit's legal viability
before the court will entertain evidence of the suit's economic viability. Pp. 55-61.” PREI, INC. v. COLUMBIA
PICTURES, 508 U.S. 49 (1993) 508 U.S. 49, visited 2/8/2010, found at
http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&court=US&case=/us/508/49.html.
29. The use of the governmental process as an
anticompetitive weapon
• The first requirement (as shown in the European
case) is to be employed as an objective standard.
There would not be any insight into the subjective
motives of the petitioner, but an application of the
centuries-old standard of the bonus paterfamilias:
Here, the version of such abstract standard would be
“the reasonable litigant”. Would a reasonable litigant
initiate and pursue such action in court to seek
redress for its own grievances?
• Again, the second test presupposes an inquiry on the
intent of the petitioner by filing and pursuing the
legally baseless suit.
• Salgado/Barbosa/Zucoloto
31. Very similar tests
• Under Noerr-Pennington and ITT Promedia the proposed tests
are very similar.
• Under Noerr-Pennington the first question to be answered is
whether, objectively speaking, the firm initiating the legal action
reasonably could believe it had rights to protect, which is more
or less the same as the test proposed by the Commission in ITT
Promedia.
• Here, only objective factors are taken into consideration, and it is
what the firm initiating the proceeding reasonably could believe
at the time the lawsuit was initiated that is relevant, later events
having no bearing on that finding.
• Second, both tests propose that if one can find that there was no
merit to the case the court will have to decide whether the
lawsuit was conceived in a plan whose goal was to eliminate
competition, the last inquiry being an inquiry into the subjective
intent of the dominant undertaking.
– RICKARDSSON
32. “a deliberate practice leading to the grant
of an exclusive right (e.g. a patent) to
which the undertaking is not entitled (e.g.
it is known to the undertaking that its
patent application does not meet the
patentability criteria, but nonetheless this
undertaking pursues the application
counting on an erroneous assessment of
the patent office – the “Type II error”
scenario);” (Filip Borkowski)
THE SECOND STREAM OF CASES:
ANTICOMPETITIVE EXERCISE OF IP
RIGHTS ILLICITLY ACQUIRED
33. Anticompetitive exercise of IP rights
illicitly acquired
• A different breed of legal reasoning occurred in
the US legal system in connection in connection
with a series of cases where an IP
Right, obtained by fraud or otherwise by illegal
means, is exercised on a competitive
environment (the “Walker Process” doctrine) .
• Walker Process Equipment, Inc. v. Food
Machinery and Chem. Corp, 382 U.S. 172
(1965).
• Salgado/Barbosa/Zucoloto
34. Anticompetitive exercise of IP rights
illicitly acquired
• This rationale identifies an anticompetitive
behavior not in the use of procedure to attain
the plaintiff’s results, but in the enforcement of
a tainted substantive right, including through a
right of petition.
• Here, the constraints of a Constitutional right of
petition is not so apparent, but even so, to
defeat the presumption of validity of the IP
Right, a steep set of requirements is imposed
on the party alleging such misconduct .
• Salgado/Barbosa/Zucoloto
35. Anticompetitive exercise of IP rights illicitly
acquired
The “second tier” analysis
• The US doctrine treats this approach as a clear “second
tier” resource of dealing with illicitly acquired IP
Rights, as the internal measures of the IP system are the
primary responsible for quashing this illegal behavior
• This problem was also felt on a different perspective
within the EU system, as indicated in a 2011 case (the
AstraZeneca 2011 case). It could be argued that this
standpoint derives from the peculiar construction of
abuse of rights in the EU Competition system.
• There is a very outstanding split of approach in the
treatment of anticompetitive acts between the US and
EU
• Salgado/Barbosa/Zucoloto
36. Anticompetitive exercise of IP rights illicitly
acquired
• In AstraZeneca [T-321/05], the Court held:
– "In the present case, the Court observes that the
submission to the public authorities of misleading
information liable to lead them into error and
therefore to make possible the grant of an
exclusive right to which the undertaking is not
entitled… constitutes a practice falling outside the
scope of competition on the merits which may be
particularly restrictive of competition. Such conduct
is not in keeping with the special responsibility of an
undertaking in a dominant position not to impair, by
conduct falling outside the scope of competition on
the merits, genuine undistorted competition in the
common market…” [Par. 355]
37. Anticompetitive exercise of IP rights
illicitly acquired
• Essentially, the distinct approach derives
from the EU Judicial case law according to
which a dominant player is prevented to act
in a manner that would be irrelevant from
non-dominant player; therefore, no
subjective intent would be requisite, as
there is no need to demonstrate an effective
exercise of the illicitly acquired IP Right on
an actual anticompetitive context.
• Salgado/Barbosa/Zucoloto
38. Anticompetitive exercise of IP rights
illicitly acquired
• In the Brazilian Tacographs case:
• “once a firm has attained dominance in the
relevant market, his elephantine behavior
would render its exercise of the right to
redress in face of competitors particularly
sensible”..
• CADE Process 08012.004484/200551, decided 18/8/2011.
40. False negatives
• “However, in this some courts may
consider baseless an action that other
courts will consider meritorious. This risk
is particularly present in situations in
which the concept of what constitutes a
baseless claim may be influenced by the
court's conception of the adequate
balance to achieve between allocative
and dynamic efficiency.
• The establishment of a bright-line rule
may lead to an important risk of false
negatives”.
• Lianos /Deyfruss
41. False negatives
And a most recent proposal
• “Predatory litigation is more problable
as:
• a) the litigator is a dominant firm or a
collusion of firms;
• b) the other part is a recent competitor
that has just entered the market – or a
potential competitor;
• c) the legal action effect is to prevent or
delay the entry or expansion or the
plaintiff, or force its exit”.
• Salgado/Morais
42. False negatives
• “The proposed test consists, in practice, in
verifying:
• - If the incumbent firm has decided to incur in
litigation costs;
• - If the level of market price remained pretty
constant for a fair period of time;
• - If there are economies of scale or equivalent
cost advantages (such as learning by doing)
present in the case;
• - If the investigation can verify “raising
rival cost” pieces of evidences in
testimonies.
• All these conditions should be present in
order fora case to be accepted as a sham
litigation case”.
• Salgado/Morais
44. Conclusion
Right to
Petition
IP scope
of rights
Competitive
concerns
• The abuse of the Constitutional
Right to petition to affirm
Intellectual Property rights on an
anticompetitive manner is a very
sensitive issue.
• In a number of jurisdictions, some
significant body of law is
developed to regulate such
dysfunctional use of legal
means, essentially through judicial
elaboration.
45. Conclusion
Right to
Petition
IP scope
of rights
Competitive
concerns
• The PREI/POSCO/ITT Promedia set of
tests seems to be the most common
standard to which the evaluation of
such cases is subjected.
• Even in jurisdictions where no specific
mention of such precedents are
frequent, some complex filtering is
carried out, considering both the
dysfunctional use of the right of
petition summed to a evident harm to
the competition environment.
• Thus, the two-pronged approach
seems to be prevalent.
46. Conclusion
Right to
Petition
IP scope
of rights
Competitive
concerns
• In most jurisdictions, the application of a
sham/vexatious litigation argument is
contingent to a series of specially damaging
levels of behavior.
• Demonstration of intent, and in many cases a
malicious or reckless intent, is very much
frequent, even in those systems where a
purely objective standard is prevalent.
• It could be argued that the double vectors of
Constitutional empowerment and the peculiar
status of IP rights as an exclusive power (thus
legally accepted “monopolies”) to enhance
dynamic competition, forces out such much
steeper criterion on the courts and regulators.
47. Conclusion
Right to
Petition
IP scope
of rights
Competitive
concerns
• On the other hand, the need to
deny the use of IP rights for
anticompetitive
purposes, especially through the
abusive employment of the much
cherished right to petition, seems
to be so spread in the present
International environment that
the issue is, beyond any
doubt, an essential factor in
Intellectual Property theory and
practice.
Editor's Notes
Ce modèle peut servir de fichier de démarrage pour un album photo.