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This week in IP: generics rebuke patentees, FTC seeks appeal, WIPO chief starts work
Managing IP rounds up the latest trademark, copyright and patent news, including some stories you might have missed

Generics weigh in on virtual EPO oppositions
The coronavirus has upended patent challenge proceedings
everywhere, forcing courts and intellectual property offices to prioritise
physical safety and rely heavily on video conferencing. The EPO is no
exception, but generics drug companies say the office’s new rules are being
abused.
The EPO Opposition Division, unlike the office’s Boards of
Appeal (BoA), has stopped in-person proceedings until December 31, but allowed
oral arguments to be made by video conference. Both parties have to consent to
a video conference, however, and numerous patentees have refused.
Six generic drugs companies, including Insud Pharma, Accord,
Fresenius Kabi, Zentiva and Gedeon Richter, tell Managing IP that this system
has caused them problems because patentees often choose to delay, and often
seemingly in an effort to stall the invalidation of their patents.
Several argue that patentees should be forced to attend to
avoid delaying the release of cheaper drugs.
Read more here.
Other Managing IP stories we published this week include:
Why start-ups need to learn about IP
In-house panel: how to cultivate talent during challenging times
WIPO courts database a hit with judges and lawyers
Opinion: Fred Perry’s troubles reveal how vulnerable brands are
Inventorship win reinforces public-private collaborations in US
Chinese counsel concerned with top court’s precedents opinion
US music changes hailed but adjustments could be hard
Why Europe struggles with IP diversity
FTC asks Ninth Circuit for en banc rehearing
The US Federal Trade Commission filed a petition with the
Court of Appeals for the Ninth Circuit on Friday, September 25, requesting an
en banc rehearing of its antitrust case against telecoms company Qualcomm.
In its August decision in FTC v Qualcomm, the Ninth Circuit held
that Qualcomm’s standard essential patent licensing model, including its “no licence, no chips”
policy and insistence on licensing only to end-product manufacturers, was
competitive.
The FTC said in its petition
that the Ninth Circuit panel erred in this decision, arguing that it did not
overturn any of Judge Lucy Koh’s first-instance findings and yet held that these
determinations did not establish a cogent theory of anti-competitive harm.
“This case has widely been recognised as enormously
important to the future of antitrust law,” the FTC wrote. “The practical stakes
are just as high: the panel’s decision blesses the continued stifling of
competition in multi-billion-dollar markets for cellular communications on
which much of the digital economy depends.”
This petition is the latest development in a lawsuit that
dates back to 2017, when the FTC charged Qualcomm with using anti-competitive
tactics to maintain monopolies in cellular communications markets.
In 2019, Koh of the District Court for the Northern
District of California ruled in favour of the FTC, finding that the company
violated antitrust law. That decision was reversed by a three-judge panel of the
Ninth Circuit last August.
The appellate court has yet to announce whether it will
accept the FTC’s petition for en banc re-hearing.
New WIPO chief promises ‘vibrant and forward-looking IP ecosystem’
Daren Tang assumed his new responsibilities as WIPO director
general yesterday, October 1, and promised to work towards a vibrant and
forward-looking global IP ecosystem that would help the world broaden its
perspective of IP beyond its legal and technical aspects.
In his acceptance speech, which marked the start of his six-year
term as head of the United Nations’ IP arm, Tang said he wanted to
prioritise working towards building an inclusive global IP ecosystem that
serves the interests of all countries and their stakeholders.
He also emphasised balance and that all institutions,
companies and policy makers should participate and benefit from IP.
Tang, who is 48 and a graduate of the National University of
Singapore, took over the position from Francis Gurry, whom Managing IP interviewed earlier this year.
Prior to his appointment as WIPO director general, Tang
served as chief executive of the Intellectual Property Office of Singapore, and
previously chaired WIPO's Standing Committee on Copyright and Related Rights.
Linklaters partner made High Court deputy judge in UK
Ian Karet, an IP partner at London magic-circle firm Linklaters, has been appointed to the England and Wales High Court as a deputy judge.
Karet, who has been a partner at Linklaters since 1997, was
appointed on the recommendation of the Judicial Appointments Commission for a
six-year period.
He will sit part time in the Chancery Division for up to 30 days per year and will continue to practise IP and technology law at Linklaters.
Responding to the appointment, Linklaters senior partner Charlie
Jacobs said: “We are delighted for Ian, who is widely recognised as a leading IP
disputes specialist. It’s good to see a solicitor appointed as a deputy, and we
congratulate him on this significant achievement.”
Karet is also a legal board member of the Charity Commission
and a member of the Civil Justice Council, an advisory public body with
responsibility for co-ordinating the modernisation of the civil litigation
system in the UK.
Managing IP has interviewed several High Court judges in the
past, including Richard Arnold and Colin Birss, before they were elevated to the Court of Appeal, and the late Henry Carr.
Western District of
Texas rocket-docket judge to hold first jury trial next week
The judge at the District Court for the Western District of
Texas, who is responsible for his jurisdiction’s meteoric rise in patent
litigation filings over the past two years, will hold his first patent jury
trial next week.
Alan Albright, who joined the court in Waco in September
2018 as a district judge, is scheduled to hold the first day of testimony in MV3 Partners v Roku on Monday, October
5.
Since Albright came to the court, patent case filings at the
Western District of Texas have risen by 629% – from 90 cases in 2018,
to 288 in 2019 and 656 as of October 1 2020 – making that jurisdiction the
busiest patent docket in the US.
The judge had yet to bring any of these cases to a jury
trial, but will do so next week.
Managing IP predicted in March that the Western District of
Texas could become the most popular court for US patent litigators. It has
overtaken Delaware, which has been the country’s busiest patent docket since the US Supreme Court's 2017 decision TC Heartland v Kraft Foods, by more than 100 cases.
China launches intellectual
property antitrust guidelines
China has published new guidelines on antitrust issues related
to patent pooling and the licensing of standard essential patents.
The guidelines, which were released by China’s State
Administration for Market Regulation (SAMR), are dated January 4 2019 but were
only officially released on September 18 2020.
The document provides a framework for how business operators
should establish an antitrust compliance system and manage such risks in China. The guidelines are not compulsory, according to SAMR, but do
indicate how the administration expects businesses to comply with antitrust
rules.
Among other things, the guidelines set out that senior
management should fully commit to antitrust compliance, that firms should establish
an antitrust compliance department or appoint a compliance officer, and that businesses
should conduct an internal self-assessment to identify antitrust law risk and
consider appropriate mitigating measures.
The Antitrust Compliance Guidelines do not, however, replace
the regional antitrust compliance guidelines released by local branches of
SAMR.
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