Imagine a scenario where the International Trade Commission (ITC) finds a respondent infringes a standard essential patent (SEP). An SEP that was included in a standard based on a voluntary promise to license it on fair, reasonable, and non-discriminatory (FRAND) terms. What happens when the complainant has breached its FRAND obligation, and at the same time demands that the ITC exclude the alleged infringing product from the United States market? Does the Commission need to consider the circumstances surrounding the FRAND obligation when reviewing the public’s interest in excluding the product? The decade-old debate will endure on for now, but the answer may rest upon which way the current Administration’s opinion-pendulum swings.
Continue Reading Breach of FRAND Implications on ITC Exclusion Orders In View of the Public’s Interest
AIPLA’s Updated Model Patent Jury Instructions Address “Clear and Convincing” Standard of Proof & Streamline Case Citations
At every jury trial involving patent-infringement or -invalidity claims, a judge must tell jurors what the law is and how to apply it when reaching a verdict. In the legal community, patent law is known as one of the most complicated and specialized areas of law, so this is asking a lot of most judges, who have broad and vast legal knowledge, but do not typically specialize in patent law. Fortunately, organizations including the American Intellectual Property Law Association (AIPLA) publish model patent jury instructions. These model instructions are helpful templates that ultimately save litigants and the public substantial resources compared to the alternative, where patent jury instructions would need to be drafted from scratch in every case.
Continue Reading AIPLA’s Updated Model Patent Jury Instructions Address “Clear and Convincing” Standard of Proof & Streamline Case Citations
Conan Doyle Estate’s Quixotic Attempt to Protect Sherlock Holmes
Led by Judge Richard Posner, the Seventh Circuit Court of Appeals recently refused what Posner called a “quixotic” attempt to extend copyright law. While the holding was perhaps to be expected, the opinion introduced a mystery of its own: If not copyright, what will stop today’s public-domain derivatives from sullying the eccentric detective’s hard-earned reputation?
Continue Reading Conan Doyle Estate’s Quixotic Attempt to Protect Sherlock Holmes