IP HAPPENINGS – JUNE 2017

20.06.2017

There’s a lot going on, summer or not. For one thing, the potentially costly and bitter IP/Antitrust battle between Apple and Nokia has been settled. The terms were not made public, but the multi-year agreement appears to call for a substantial  up-front payment by Apple (one estimate I’ve seen is up to €800 million) and continuing royalties, presumably at a FRAND rate for SEPs.

Reports say that a concurrent business collaboration agreement (or perhaps it’s all in one agreement), provides for Apple purchase of network infrastructure products and services from Nokia and resumption of sales of Nokia digital health products in Apple retail and online stores. Reportedly, Apple and Nokia are also exploring future collaboration in digital health initiatives.

In what has caused some surprise, the U.S. Supreme Court has agreed to determine the constitutionality of the Inter Partes Review (IPR) process established by the America Invents Act (AIA). The result is likely to turn on whether the Court determines that a patent is private property, in which case, the IPR will go down, or a public right, in which case it will likely survive.

In the former case, the court would likely find that validity can only be determined by a federal court and, if requested, by a jury trial. In the latter case, the jurisdiction of the Patent Trial and Appeal Board (an administrative body) would be permitted.

This case is important in a practical sense and interesting in a constitutional sense. A holding that a patent once granted is a private right would mean the end of the IPR, as well as the other post grant review processes, major features of the AIA.

Early reaction includes surprise that the Court took the case, and that patent owners will be no worse off than they are now if the Court upholds the IPR process. I tend to agree. I also believe that if the IPR is scuttled, it might not be that much better for patent owners. What’s really needed if a more patent friendly administrative process.

And the Waymo v. Uber case is chugging along. There’s mostly bad news for Uber and Levandowski; Waymo is largely getting access to the information it’s seeking. But Uber and Levandowski don’t yet seem to see that “resistance is futile”, to coin a phrase.

Other interesting events include:

  • How a little mistake in an assignment doomed a patent suit;
  • A report that the German Constitutional Court has requested that ratification of the Unitary Patent Court be held up pending consideration of a complaint lodged by an unnamed person, which will probably further delay implementation of the Unitary Patent System;
  • A ruling by the Beijing High People’s Court that POWER POINT is not the generic name for presentation file formats and is thus a valid Microsoft trademark; and
  • A ruling by the EU General Court that the trademarks NIMORAL and NEORAL are confusingly similar the same cancer treatment pharmaceuticals.
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