Must Patent Hold-Up be regulated?

The CJEU decision in the matter Huawei ./. ZTE (see e.g. here)  sheds new light on the interface between standard essential patents, antitrust law and competition law.  It is time to come together and have a look onto the fractal legal landscape in this fascinating field!  The Liège Competition and Innovation Institute (LCII) is so kind to organize such a come together.

Readers who do not yet know how to spend the extra day of the present leap year should consider attending to the event:

REGULATING PATENT “HOLD-UP”? AN ASSESSMENT IN LIGHT OF RECENT ACADEMIC, POLICY AND LEGAL EVOLUTIONS

Abstract: The patent hold-up theory has nurtured many policy developments in the past ten years. On the one hand, Standard Setting Organizations (SSOs) have been exploring changes to their licensing policies, in particular in relation to the commercial implications of FRAND pledges given by holder of Standard Essential Patents (“SEPs”). On the other hand, antitrust agencies and patent courts across the globe have been confronted with several waves of cases Those proceedings have generated a thick, diverse and somewhat inconsistent body of case-law on a wide array of topics, including the availability of injunctive relief, patent valuation, portfolio licensing, practicing and non-practicing entities, etc. This conference seeks to provide a 360° state of play on patent hold-up in contemporary antitrust and patent policy.

This Half-Day conference will take place in Brussels, on February 29th, 2016. The full Conference programme is available here, Registration here.

Speakers include the most prominent scholars, judges and advocate generals in the field such that the event will surely be beneficial to all those who attend.

Double Agent In The Room - T 1693/10

The representative appelant in the oral hearing for the case T 1693/10  took the defendant's representative by surprise by appearing in the company of new colleague who had previously worked in the same firm and same department as defendant's representative.  According to the appelant, he had access to the files and to internal information and his presence was a substantial procedural violation.

Though the alleged double-agent agreed to not saying anything and to only assist the representative as an "accompanying representative", this rendered his former colleague sufficiently nervous to requset that his former colleague be excluded from the hearing and to raise an objection under Rule 106EPC otherwise.

The Board was unimpressed by the presence of the double-agent and pointed out that it was not the body to decide on the epi code of conduct which would be applicable in the case of an eventual conflict of interest.

Novelty on a mental level does not count T 2191/13

The decision T 2191/13 relates to a two-component adhesive system wherein the amount of one of the components B is supposed to be adapted to the respective substrates and processing conditions.

The two-component adhesive system as such was disclosed in the closest prior art but disclosure on whether or not the amount of component B was adapted to anything was lacking.

The board found that the claim was not novel nonetheless. The headnote (in an unofficial translation) reads:

A difference to the prior art existing only on a mental level, which is exclusively based on the existence of an insight, cannot render the subject-matter a claim novel unless the insight is reflected in the technical features of the claimed subject-matter (points 12.3 and 12.4 of the reasons)

The board adds that accepting that features of this type would have a limiting effect would require the assessment of insights an alleged infringer had when selecting component B and the amount thereof when judging on the infringement.