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This week in IP – SCOTUS streams arguments, China publishes copyright law, new German FRAND rules


Managing IP rounds up the latest patent, trademark and copyright news, including some you may have missed

SCOTUS breaks virtual ground in

The traditionally technology-averse US Supreme Court held remote arguments for the first time on Monday in a trademark case concerning

The court conducted its proceedings in USPTO v by telephone and streamed live audio, allowing the public to experience an event usually reserved for members of the public who wait in line to get into the US’s highest court, on Capitol Hill.

The arguments were reportedly made with few issues, with the exception of a delay from Justice Sonia Sotomayor as she began her questioning in the first half of the arguments.

Lawyers are now looking to the court to see if it will continue to conduct virtual proceedings once the COVID-19 shutdown comes to an end and the Supreme Court reopens for in-person meetings.

German Supreme Court sets out new FRAND rules

In a decision handed down on Wednesday that could raise the bar for rules on fair, reasonable and non-discriminatory terms for implementers in Germany, the Federal Court of Justice ruled that home-appliance company Haier had infringed two of Sisvel’s standard essential patents.

Justice Meier Beck, one of Germany’s most renowned patent judges, made it clear that an infringer is obliged to make a concrete licence offer to an SEP owner, even under the Court of Justice of the EU’s FRAND rules set out in 2015’s Huawei v ZTE.

The implementer, he said, should demonstrate this through its overall conduct in negotiations with the SEP holder.

“It is not enough to simply declare your willingness to take a licence. You have to be more specific,” said Meier-Beck.

In a blog on this ruling, Linklaters managing associate Bolko Ehglen said the issues addressed in the case will probably cover only a small portion of the uncertainties around FRAND rules.

“In particular, one should not expect a statement from the court on what a FRAND licence is,” he said.

The written judgment on this matter is expected in a couple of weeks.

China publishes draft copyright law for comment

The National People’s Congress recently released a draft of the Copyright Law for public comment. 

The new draft sets out the availability of punitive damages of up to five times actual damages, an exponential increase in the maximum statutory damages from RMB 500,000 to RMB 5 million (roughly $708,000), and switching the burden of proof for proving damages.

Comments on the draft bill are due by June 13, and the draft will probably be reviewed again towards the end of the year or in 2021.

Managing IP published an analysis of the Chinese Copyright Law in September 2019.

USPTO launches COVID platform

The USPTO unveiled a new web-based intellectual property marketplace on Monday called Patents 4 Partnerships.

The platform has been launched to provide the public with a user-friendly and searchable repository of patents and published applications related to the COVID-19 pandemic that are indicated as available for licensing.

In a recent press release, the office said that the new platform will facilitate “the voluntary licensing and commercialisation of innovations in a variety of key technologies, and help disseminate valuable patent information”.

This announcement comes as more companies, including Microsoft, join the Open Covid Pledge, where firms publicly commit to make IP relevant to COVID-19 freely available.

More from across our site

In-house and private practice counsel say UK judges have raised the bar for preliminary injunction requests
António Campinos will serve another five years as EPO president – perhaps he’ll calm unrest at the office in that time
LGBTQ IP lawyers say using rainbow colours and posting solidarity messages on social media must be followed by concrete action
Brand owners bemoan counterfeiters’ latest wheeze and say enforcement authorities should get more involved
Counsel at Bayer, Novartis, a generics company and other firms debate what the WTO’s patent waiver will mean in the short and long term
The patent office report found that stakeholders were still divided over subject matter eligibility but broadly wanted clarity
The UKIPO published the results of its consultation on AI and IP today, June 28, and plans to shake up the rules on copyright and data
IP consultancy Brandit is the first European intellectual property firm to announce plans for an augmented-reality presence
Patent owners and implementers weigh in on the PTAB Reform Act – its provisions, what it missed and its likelihood of success
Counsel from Blackbird, Unified Patents, two other companies and a law firm debate what new ways to avoid Fintiv mean for petitioners and patent owners
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