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Rules for Playing Nicely – EU Commission and injunctions for Standards Essential Patents

The CJEU prepare to hand down their decision in  Huawei v. ZTT (Image via Creative Commons Licence; Author Magnus Manske)

The CJEU prepare to hand down their decision in Huawei v. ZTT (Image via Creative Commons Licence; Author Magnus Manske)

A riddle, wrapped in a mystery, inside an enigma – Churchill may have been talking about Russia, but when I hear this phrase FRAND licensing is more likely to come to mind, and more particularly, FRAND licensing for standards essential patents (SEPs).  It must have all sounded so straightforward once – all the standards bodies agreed that you could bring your patents to the party, you would license them to all your competitors, you’d get a royalty back to compensate you for your R&D efforts, and it would all be fair, reasonable… and nice – well, technically “non-discriminatory”, but “nice” seems to get the wooliness of the intention over better – with the end result of a collection of patents all licensed to the rest of the industry under FRAND terms.  It all seemed so reasonable that an engineer at the standards meeting could concentrate on reaching the best technical solution (his or hers, obviously…) without any thought to yucky patent stuff.

Yeah, right.  It hasn’t been nice for a while – not a surprise, as a requirement to license SEPs on FRAND terms is little more than an agreement to make SEPs Someone Else’s Problem and not an issue for the standards body concerned.  Despite a good twenty years of fractious patent disputes about SEPs and FRAND licensing absorbing vast quantities of legal effort – I’ve spent many hours on the DRAM and 802.11a patent sagas alone, and I was barely on the fringes of both – many key questions, such as how FRAND license royalties should be calculated and just what a patent proprietor is entitled to do up to the point where a licensing target becomes a paid-up licensee, have nebulous answers at best. (more…)

Unified Patent Court Rules of Procedure Consultation – Submissions Round-up

Unified patent courtUpdated: Two further consultation submissions added 18 November

Following our recent posts highlighting some of the various rules of procedure consultation submissions that have come to light, more have popped up online. For your ease of reference we thought we’d pull together links to all the submissions we’ve seen in one place. If anyone has come across other submissions then please let us know and we’ll add them to the post.

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The UPC Rules of Procedure: Apple, Google and Samsung join forces!

EU flagIPcopy was very interested to read AmeriKat’s excellent post on IPKat about the joint letter that Apple, Google and Samung (amongst others) have sent to the Member States of the European Union, Members of the European Parliament, the European Commission and the Preparatory Committee of the Unified Patent Court. The letter which was sent to the New York Times (see NY Times article here) notes that “an effective and balanced unitary patent system has the potential to decrease the costs of obtaining patent protection, increase European competitiveness, and support the long-term growth of innovative industries in Europe and abroad”.

The letter then goes on however to raise two major concerns with the Rules of Procedure (15th Draft here), namely bifurcation and injunctions.

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Apple Apology – Text of Judgment available

As noted in earlier posts (here and here) the statement Apple posted to their website wasn’t exactly what the judges in the Court of Appeal had in mind. The full text of the judgment following Samsung’s complaint is now available here. It is well worth a read and almost relentless in its disapproval of Apple’s actions.

The current version of the Apple website links to the intended wording. Or you could try this.

Apple “Apology” [Updated] – Court of Appeal serves huge slice of piping hot humble pie for Apple to eat in public

As noted in many locations, including IPcopy here, the apology that Apple was required to place on their website following the recent court decisions in the High Court and Court of Appeal relating to the registered Community Design No. 000181607-0001 left something to be desired.

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Apple “Apology”

As noted in many recent news stories, Apple has now included a link on their UK website to a page explaining the outcome of their recent Court of Appeal decision in the UK. The link on their front page has been located in such a way as to provide a sort of “Where’s Wally?” experience when you try and find it.

Clicking on the link takes you to a page completely devoid of Apple branding. There are six paragraphs of text on this page, paragraphs 1 and 5 being the text specified by the judge in the UK court case. Paragraphs, 2, 3, 4 and 6 have been added by Apple. When I look at the page, I can’t help seeing it like this:

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It’s a question of design

Is this an iPad I see before me?

In the recently decided Samsung versus Apple case in the UK Court of Appeal, the court confirmed that Samsung did not infringe Apple’s registered Community Design No. 000181607-0001.

At paragraph 54 of the decision, Sir Robin Jacob stated: “If the registered design has a scope as wide as Apple contends it would foreclose much of the market for tablet computers. Alterations in thickness, curvature of the sides, embellishment and so on would not escape its grasp. Legitimate competition by different designs would be stifled”.

In light of the above and the decision as a whole it would appear the UK courts are going to give design registrations a fairly narrow scope.

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