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

SCOTUS breaks virtual ground in Booking.com

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

The court conducted its proceedings in USPTO v Booking.com 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.

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