4 posts • joined 16 Dec 2010
Suing Microsoft: a thought on patent damages litigation
US patent law gives the courts discretion to multiply an award of damages by up to three times, which is why wilful damages awards are so high. This sounds very generous to the holder of the infringed patent, but I wonder whether it really works to the successful plaintiff's benefit.
Where the cost of failure in litigation is so high, the temptation to appeal -- and to invest heavily in the appeal -- will increase, thus multiplying the expense of enforcement and delaying the outcome. Also, while it is relatively easy to assess whether a patent is infringed, it can be extremely difficult to assess whether the infringement was wilful or not. This can involve lengthy and time-consuming discovery of evidence, which must then be digested and rationalised into a plausible case that the infringement was wilful.
I wonder whether a better litigation strategy for the Unilocs of this world, when suing in the US and where the infringement is ongoing, is not to go for damages at all but press swiftly for an injunction as a means of leveraging a good stream of licence revenue.
Also, I don't know if there's any comparative data as between the US and Germany, but in Germany there is little scope for discovery and damages awards are most ungenerous by US standards, but the handling of infringement litigation is by general assent pretty good.
Nothing left to learn?
“There’s nothing left for me to learn. Everything ahead would be subtle variations of things I had already done", says the retiring leader. I've been working in intellectual property since 1973 and have yet to experience this. Perhaps I'm a slow learner.
Apart from the legal and the commercial aspects of copyright and file-sharing, there's so much which -- if it has been learned at all -- has certainly not been taught. For example (i) how to respect and understand the sincerely-held opinions of people who disagree with you; (ii) how to encourage and foster investment in the creation of original and recorded works, bearing in mind the fact that some people take financial risks in one or more part of the process and others do not, and (iii) how to appreciate the needs and interests of the consuming public at a time of constant technological change.
The Pirate Parties in Europe have contributed to the debate, but it is sad when their leaders walk away from it before we have had a chance to satisfy so many conflicting interests and draw the debate to its close.
It's a big disappointment that this decision is not in English, since we have a court applying the IP Enforcement Directive 2004/48 here. There are very few reported cases in any national courts on the application and interpretation. It would be helpful to know what the General Court said about it -- and it'll be good to see the extent to which national courts consider themselves obliged to apply any interpretation of its provisions.
SMEIA attack on patents
The SMEIA has succeeded in grabbing some headlines, but the patent system is far from useless for SMEs, both in the UK and elsewhere. We all know that the expense of enforcing patents can be horrendous and that small businesses are far less able to bear the burden than are big ones. But the SMEIA does not appear to have noticed or welcomed the revamping of the Patents County Court in October, with a new regime for handling patent disputes and a bright, responsive judge, which is designed to tackle the problems. Incidentally, the vast majority of patents are never infringed or litigated throughout their term of protection -- but many are sold, licensed, pooled and used as security for finance.
Since the SMEIA purports to speak for SMEs, it would be great to know how many members it has, and whether it is more representative of SMEs than, for example, the CBI -- which also claims to speak for them.