Friday, March 12, 2021
Antisuit follow-up: deference to foreign jurisdictions ranges from never to always ; and what role could standard-setting organizations play?
First, for the sake of completeness I must point out that the German zero-deference doctrine (sanctity of patents beats everything and warrants self-defense) and the multifactorial analysis performed by U.S. and Chinese courts are not the only two frameworks. There s a spectrum, and the longer it takes to resolve the current antisuit crisis, the more variants we will see.
The extent to which courts in one country defer to injunctions or ongoing SEP-related proceedings in another can range from 0% to 100%. I ll use four words without any intent to allude to a movie title:
FOSS Patents: Standardization fosspatents.com - get the latest breaking news, showbiz & celebrity photos, sport news & rumours, viral videos and top stories from fosspatents.com Daily Mail and Mail on Sunday newspapers.
First, for the sake of completeness I must point out that the German zero-deference doctrine (sanctity of patents beats everything and warrants self-defense) and the multifactorial analysis performed by U.S. and Chinese courts are not the only two frameworks. There s a spectrum, and the longer it takes to resolve the current antisuit crisis, the more variants we will see.
The extent to which courts in one country defer to injunctions or ongoing SEP-related proceedings in another can range from 0% to 100%. I ll use four words without any intent to allude to a movie title: Never : Munich Higher Regional Court in
What I absolutely dislike about the German approach to A2SIs (and, by extension, A4SIs) is that there s no analysis much less a multifactorial analysis of the question of whether a German court should defer to a foreign court. The simplistic thinking is this: patents are good, patent lawsuits are even better, and the best patent suits are the ones filed in Germany; therefore, any foreign antisuit injunction would restrict the enforcement those sacrosanct German patent rights and must be prohibited, even though German law doesn t allow antisuit injunctions. The argument is that the foreign antisuit activity unlawfully puts a patent plaintiff into a straightjacket with respect to intellectal property that would otherwise be enforceable in Germany. (In the U.S. and China, the analysis underlying an antisuit injunction is far more sophisticated.)
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Patent litigation, the Sport of Kings, does not come cheap, especially when the litigation transmogrifies into a multi-jurisdictional slugfest. When managing a global patent fight, it is important to keep the big picture in mind and understand when continued fighting makes sense and when it does not. One rough and ready tool is to compare the ratio between the current royalty demands and the anticipated litigation costs in one’s case to other historical litigations. Comparing such ratios can help one understand whether return on investment in the litigation makes sense in terms of hoped-for royalty savings. Such information can inform the parties when it makes sense to settle.