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Latest Patent Cases in 2021 – Part 1

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Latest Patent Cases in 2021 – Part 1

Latest Patent Cases in 2021 - Part 1

H. Lundbeck A/S & Anr. vs Symed Labs Limited

In this case, the patent holder (plaintiff) and the defendant settled a patent suit even before notice was served, and filed an application asking the Court to decree the suit as per the terms of the settlement agreement, which the Court did. The Court also refunded the Court fee payed by the plaintiff in the case. This settlement agreement between the parties is interesting because it dealt with use of the patent under Section 107A, which provides exemptions to patent infringement for use of the invention to develop and submit information for Government approval and parallel importing. Technically, the permission of the patent holder is not required for such a use, and the agreement defines the scope of permitted use in general terms. It states that R and D use for regulatory approval is permitted, but commercialization is not.

The settlement terms cited by the Court read as follows:

“i. The Defendant acknowledges the validity of the Indian Patent No. 227963 during its subsistence.

ii. The Defendant undertakes that it will not be commercially launching any product, including but not limited to Vortioxetine and/or Vortioxetine Hydrobromide violating the suit patent IN 227963 (hereinafter, ‘IN ‘963patent’) during its subsistence.

iii. That the Defendant undertakes that it will furnish a statement to the Plaintiffs and their counsel, every 6 months, starting from the date on which the settlement is recorded and until the subsistence of the IN ‘963 patent, containing the particulars and quantities of Vortioxetine and/or Vortioxetine Hydrobromide supplied/ to be supplied to third parties whether in the domestic market or by export for R&D purposes prescribed under S. 107A of The Patents Act, 1970 (hereinafter, ‘Patents Act’).

iv. That the Defendant undertakes that at all times and until the subsistence of the IN’963 patent, the Defendant will obtain declarations/ and undertakings from all third-party customers that such purchase/sale/export of Vortioxetine and/or Vortioxetine Hydrobromide is for the purposes prescribed under S. 107A of the Patents Act and provide the same to the Plaintiffs and their counsel.

v. That the Defendant further undertakes that, going forward and till the subsistence of the Indian Patent No. 227963, it will supply Vortioxetine and/or Vortioxetine Hydrobromide to only those entities which will provide them the information on the quantities of Vortioxetine and/or Vortioxetine Hydrobromide required for regulatory purposes under the laws of their country and/or any other country where they are applying for regulatory approval, whichever is applicable. That upon obtaining the said information, the Defendant will provide the same to the Plaintiffs and their counsel.

vi. That the Defendant further undertakes that if, during the subsistence of the Indian Patent No. 227963, it is discovered that any of the parties to whom the Defendant has supplied the product Vortioxetine and/or Vortioxetine Hydrobromide, are commercializing the product, the Defendant will promptly inform the Plaintiffs and their counsel along with requisite proof of such commercialization. Further, the Defendant would also stop the supply of the product to such party immediately and provide a confirmation thereof in writing to the Plaintiffs and their counsel.

vii. That the Defendant further undertakes that all communications to be made by the Defendant to the Plaintiffs and their counsel, in writing, in compliance of the aforesaid terms, would be at their respective postal addresses or email addresses, mentioned below: XXX

viii. That the Plaintiffs reserve their right to seek revival of the instant law-suit if the Plaintiffs find the Defendant herein has made commercial use of the suit patent, IN 227963.

ix. The present suit may be decreed in view of the aforesaid terms and that the Plaintiffs may be entitled to refund of court fees under the Court Fees Act, 1870.”

Citation: H. Lundbeck A/S & Anr. vs Symed Labs Limited, Decided by the Delhi High Court on 4 June, 2021, available at: https://indiankanoon.org/doc/115266148/

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Source: https://www.bananaip.com/ip-news-center/latest-patent-cases-in-2021-part-1/

Patents

Apple and its gimmick, what is AirTag?

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Remember when all people talked about was the key-finder? As if they were the only thing people frequently lost. Apple has turned this common problem into the idea for its latest product, AirTag, an intelligent detector for the objects we always fear losing.

The device is about the size of a coin, about 32mm in diameter and weighing 11g, it is sold individually or in sets of four, working of course with an iOS app. AirTag has an elegant yet simple design and can also be used as a key ring. 

Once the AirTag has been removed from its packaging, all we have to do is pull away the protective plastic tab to enable the battery, and then all we have to do is bring it close to the iPhone or iPad and it will be immediately recognised and we can register AirTag on our Apple account.

So if you’re tired of searching for hours and hours for an object, once you’ve bought AirTag, just clip it on your keys and bag and go out in a carefree manner.

HOW IT WORKS

If you think you’ve lost your wallet, pick up your smartphone, open the new Where’s app and play the AirTag’s built-in speaker. Or you can ask Siri like this: “Hey Siri, find my wallet”. If it’s nearby, like under the sofa or in the next room, just follow the sound to find it. In addition to the easily recognisable sound, AirTag also provides a map of the lost item via the ‘Precise location’ function.  If the AirTag is nearby, the “Precise Location” function on your iPhone can guide you to its exact location. Thanks to Ultra Wideband technology, you will see the direction to follow and the exact distance. This feature is especially compatible with the following iPhone models: 
iPhone 11
iPhone 11 Pro and iPhone 11 Pro Max
iPhone 12 and iPhone 12 mini
iPhone 12 Pro and iPhone 12 Pro Max

image source: apple.com

At this point it is clear that AirTag is nothing more than a Bluetooth tracker. When you need to find something, the AirTag sends out a secure Bluetooth signal that can be picked up by nearby devices in the Where’s network. These devices send AirTag’s location to iCloud. When you open the Where’s app, you’ll see it on the map. The whole process is anonymous and encrypted to protect your privacy.

image source: apple.com

Apple has thought of everything. If another person’s AirTag accidentally ends up in your stuff, your iPhone notices it’s moving with you and alerts you.  Or if you’re in a place where other people have an AirTag, the alerts are only triggered when the AirTag moves away from the person it belongs to.

You can find all the information you need to purchase here

PlatoAi. Web3 Reimagined. Data Intelligence Amplified.
Click here to access.

Source: https://www.thepatent.news/2021/07/28/apple-gimmick-airtag/

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Patents

Apple and its gimmick, what is AirTag?

Published

on

Remember when all people talked about was the key-finder? As if they were the only thing people frequently lost. Apple has turned this common problem into the idea for its latest product, AirTag, an intelligent detector for the objects we always fear losing.

The device is about the size of a coin, about 32mm in diameter and weighing 11g, it is sold individually or in sets of four, working of course with an iOS app. AirTag has an elegant yet simple design and can also be used as a key ring. 

Once the AirTag has been removed from its packaging, all we have to do is pull away the protective plastic tab to enable the battery, and then all we have to do is bring it close to the iPhone or iPad and it will be immediately recognised and we can register AirTag on our Apple account.

So if you’re tired of searching for hours and hours for an object, once you’ve bought AirTag, just clip it on your keys and bag and go out in a carefree manner.

HOW IT WORKS

If you think you’ve lost your wallet, pick up your smartphone, open the new Where’s app and play the AirTag’s built-in speaker. Or you can ask Siri like this: “Hey Siri, find my wallet”. If it’s nearby, like under the sofa or in the next room, just follow the sound to find it. In addition to the easily recognisable sound, AirTag also provides a map of the lost item via the ‘Precise location’ function.  If the AirTag is nearby, the “Precise Location” function on your iPhone can guide you to its exact location. Thanks to Ultra Wideband technology, you will see the direction to follow and the exact distance. This feature is especially compatible with the following iPhone models: 
iPhone 11
iPhone 11 Pro and iPhone 11 Pro Max
iPhone 12 and iPhone 12 mini
iPhone 12 Pro and iPhone 12 Pro Max

image source: apple.com

At this point it is clear that AirTag is nothing more than a Bluetooth tracker. When you need to find something, the AirTag sends out a secure Bluetooth signal that can be picked up by nearby devices in the Where’s network. These devices send AirTag’s location to iCloud. When you open the Where’s app, you’ll see it on the map. The whole process is anonymous and encrypted to protect your privacy.

image source: apple.com

Apple has thought of everything. If another person’s AirTag accidentally ends up in your stuff, your iPhone notices it’s moving with you and alerts you.  Or if you’re in a place where other people have an AirTag, the alerts are only triggered when the AirTag moves away from the person it belongs to.

You can find all the information you need to purchase here

PlatoAi. Web3 Reimagined. Data Intelligence Amplified.
Click here to access.

Source: https://www.thepatent.news/2021/07/28/apple-gimmick-airtag/

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Patents

Sisvel vs. Haier: Düsseldorf court follows case law in Via Licensing and TCL dispute

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In urgent preliminary proceedings, the Higher Regional Court Düsseldorf has upheld two injunctions against TCL, handed down by the city’s first-instance Regional Court (case numbers: 4b O 83/19, 4b O 23/20, and 4b 49/20). The Higher Regional Court rejected two objections by the European and German distributors of Chinese company TCL against the judgment, as well as its FRAND defence, after Via Licensing members claimed infringement by the company.

TCL disputed the validity of the first judgment. However, the Higher Regional Court corroborates the first instance decision of TCL being what the court deems an unwilling licensee (case ID: I-15 U 39/21 and I-15 U 40/21).

Sisvel vs. Haier sets standard

Previously, the Düsseldorf court had a relatively low threshold regarding the alleged infringer’s willingness to take a licence. However, in upholding the two latest judgments, the Higher Regional Court shadows the Federal Court of Justice’s recently-developed approach to licence holders. The Karlsruhe court recently heightened its standard for implementers in the case between Sisvel vs. Haier.

At the end of October 2019, Dolby and Philips filed three cases against TCL in Düsseldorf, heard by the Regional Court in March 2021 and April 2021 respectively. The standard essential patents subject to the most recent order are EP 1 410 687 and EP 1 342 230. Dolby owns both patents; both cover the standard MPEG-4 AAC (advanced audio coding). Another Dolby patent has since expired.

A third decision, regarding Via Licensing pool member Philips, is also pending before judge Thomas Kühnen (court ID: I-2 U 13/21).

The current judgments pertain to TCL’s distribution of mobile phones and tablets containing the AAC technology. However, the preliminary proceedings are just the beginning of the main appeal proceedings between Dolby, Philips and TCL. It will likely be a year before the main proceedings take place.

Leading to a licence

Via Licensing distributes licences on behalf of its members’ SEPs. In 2005, TCL had taken a licence for Dolby and Philips’ SEPs through Via Licensing. The pool terminated the licences in 2007; subsequent years of unsuccessful negotiating licensing agreements then followed.

In May 2021, the first instance Düsseldorf court decreed that the two Dolby and one Philips patents are all SEPs. It then issued an injunction against TCL in all three cases. A week before the hearing, the Chinese electronics company had submitted a FRAND licensing counter-offer, but the court found TCL an unwilling licensee. It also rejected the FRAND defence.

TCL then filed an appeal, requesting a stay of enforcement of the judgments for the appeal term. However, the Higher Regional Court Düsseldorf rejected the offer in a preliminary hearing. In doing so, the court has followed the approach of the Federal Court of Justice in Sisvel vs. Haier – namely, that implementers must demonstrate willingness to actively seek a licence.

According to the Higher Regional Court Düsseldorf, it is no longer enough to simply submit a licence offer when it may have already by-passed several previous opportunities to do so. This broadly follows the reasoning from Karlsruhe, whose judges noted that it is insufficient for a party to express the will to conclude a licence with the SEP holder only once. Implementers, say the court, must act in a way that avoids the so-called ‘patent hold-out’.

Sisvel vs. Haier on stage

In 2020, the German Federal Court of Justice in Karlsruhe ruled that Haier had infringed two Sisvel SEPs: EP 08 52 885 and EP 12 64 504. Furthermore, the court decided that the Chinese mobile phone manufacturer did not make sufficient efforts to obtain a FRAND licence (case ID: K ZR 35/17).

While the court ruled that Haier infringed both patents, antitrust senate judges also ruled that Haier was an unwilling licensee. This is because the company did not submit FRAND offers quickly and concretely enough.

In handing down its decisions, the judges gave implementers more obligations than many experts expected. Thus, implementers must not only actively seek a licence; according to the Federal Court judges, they must also react in good time. The patent user must also examine the patent portfolio at relatively short notice.

According to the judges, implementers must act in a way that avoids the so-called ‘patent hold-out’, in other words using a delaying tactic to avoid paying a licence fee for as long as possible. For example, the implementers can do this by declaring their interest in a licence. However, the party might then not work towards the conclusion of a licence.

German courts align

Interestingly, while the senate of Ulrike Voß followed the Sisvel vs. Haier reasoning in the two Dolby judgments, the Philips judgment remains pending at the senate of Thomas Kühnen. The latter judge is notoriously outspoken against the Karlsruhe court’s approach to FRAND licensing.

Via Licensing

Tilman Müller

In the Sisvel vs. Haier case, trial observers saw the ruling as a strong contrast to case law from the Düsseldorf patent courts, and more in line with the Mannheim and Munich patent courts. Now the Düsseldorf courts are more aligned with Munich. Observers suggest that this ruling is another step along the path of appealing to patentees to file cases in Germany.

Furthermore, proceedings at the Mannheim Regional Court between Fraunhofer and TCL have now concluded, with one case pending in the first instance and stayed. In the other case, the judges rendered a negative first instance decision. Klaka, on behalf of TCL, have filed an appeal before the Karlsruhe court.

Two further cases are pending in Düsseldorf at the first instance. One is another Dolby patent against TCL, with the other filed by Japanese IT corporation NEC against TCL.

Who’s who in patent

In the three cases against Philips, Dolby and Fraunhofer, TCL has different German legal representation. Vossius, led by partner Andreas Kramer, represents TCL in the cases against Dolby. Patent attorney Christian Sandweg also worked on the nullity aspects of the case.

For the Philips case, the Düsseldorf office of CMS Hasche Sigle represented TCL. Although the team has frequently changed for TCL against Fraunhofer, the latest firm to lead proceedings for TCL is Klaka. The IP boutique represented the company in both Mannheim and Karlsruhe, taking over the two cases in 2018 for its first instruction for the company.

Via Licensing

Andreas Kramer

The Hamburg-based mixed IP firm Eisenführ Speiser is representing both Dolby and Philips. The firm has worked with Philips since around 2010, with its relationship to Via Licensing and other members such as Dolby going back to 2014.

The firm also represents Fraunhofer in the now-concluded Mannheim proceedings.

For Philips/Dolby
Eisenführ Speiser (Hamburg): Tilman Müller, Volkmar Henke (partners); Stefan Wiethoff (partner, patent attorney)

For TCL against Dolby
Vossius & Partner (Munich): Andreas Kramer (partner, lead); associates: Hannes Obex, Philipp Widera; Christian Sandweg (partner, patent attorney)

For TCL against Philips
CMS Hasche Sigle (Düsseldorf): Markus Deck; associate: Sven Krause

For TCL against Fraunhofer
Klaka (Düsseldorf): Olaf Giebe, Wolfgang Götz (partners)
Gulde & Partner (Berlin): Nicolas Haße

Higher Regional Court Düsseldorf, Düsseldorf
Ulrike Voß

PlatoAi. Web3 Reimagined. Data Intelligence Amplified.
Click here to access.

Source: https://www.juve-patent.com/news-and-stories/cases/sisvel-vs-haier-dusseldorf-court-follows-case-law-in-via-licensing-and-tcl-dispute/

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Patents

Sisvel vs. Haier: Düsseldorf court follows case law in Via Licensing and TCL dispute

Published

on

In urgent preliminary proceedings, the Higher Regional Court Düsseldorf has upheld two injunctions against TCL, handed down by the city’s first-instance Regional Court (case numbers: 4b O 83/19, 4b O 23/20, and 4b 49/20). The Higher Regional Court rejected two objections by the European and German distributors of Chinese company TCL against the judgment, as well as its FRAND defence, after Via Licensing members claimed infringement by the company.

TCL disputed the validity of the first judgment. However, the Higher Regional Court corroborates the first instance decision of TCL being what the court deems an unwilling licensee (case ID: I-15 U 39/21 and I-15 U 40/21).

Sisvel vs. Haier sets standard

Previously, the Düsseldorf court had a relatively low threshold regarding the alleged infringer’s willingness to take a licence. However, in upholding the two latest judgments, the Higher Regional Court shadows the Federal Court of Justice’s recently-developed approach to licence holders. The Karlsruhe court recently heightened its standard for implementers in the case between Sisvel vs. Haier.

At the end of October 2019, Dolby and Philips filed three cases against TCL in Düsseldorf, heard by the Regional Court in March 2021 and April 2021 respectively. The standard essential patents subject to the most recent order are EP 1 410 687 and EP 1 342 230. Dolby owns both patents; both cover the standard MPEG-4 AAC (advanced audio coding). Another Dolby patent has since expired.

A third decision, regarding Via Licensing pool member Philips, is also pending before judge Thomas Kühnen (court ID: I-2 U 13/21).

The current judgments pertain to TCL’s distribution of mobile phones and tablets containing the AAC technology. However, the preliminary proceedings are just the beginning of the main appeal proceedings between Dolby, Philips and TCL. It will likely be a year before the main proceedings take place.

Leading to a licence

Via Licensing distributes licences on behalf of its members’ SEPs. In 2005, TCL had taken a licence for Dolby and Philips’ SEPs through Via Licensing. The pool terminated the licences in 2007; subsequent years of unsuccessful negotiating licensing agreements then followed.

In May 2021, the first instance Düsseldorf court decreed that the two Dolby and one Philips patents are all SEPs. It then issued an injunction against TCL in all three cases. A week before the hearing, the Chinese electronics company had submitted a FRAND licensing counter-offer, but the court found TCL an unwilling licensee. It also rejected the FRAND defence.

TCL then filed an appeal, requesting a stay of enforcement of the judgments for the appeal term. However, the Higher Regional Court Düsseldorf rejected the offer in a preliminary hearing. In doing so, the court has followed the approach of the Federal Court of Justice in Sisvel vs. Haier – namely, that implementers must demonstrate willingness to actively seek a licence.

According to the Higher Regional Court Düsseldorf, it is no longer enough to simply submit a licence offer when it may have already by-passed several previous opportunities to do so. This broadly follows the reasoning from Karlsruhe, whose judges noted that it is insufficient for a party to express the will to conclude a licence with the SEP holder only once. Implementers, say the court, must act in a way that avoids the so-called ‘patent hold-out’.

Sisvel vs. Haier on stage

In 2020, the German Federal Court of Justice in Karlsruhe ruled that Haier had infringed two Sisvel SEPs: EP 08 52 885 and EP 12 64 504. Furthermore, the court decided that the Chinese mobile phone manufacturer did not make sufficient efforts to obtain a FRAND licence (case ID: K ZR 35/17).

While the court ruled that Haier infringed both patents, antitrust senate judges also ruled that Haier was an unwilling licensee. This is because the company did not submit FRAND offers quickly and concretely enough.

In handing down its decisions, the judges gave implementers more obligations than many experts expected. Thus, implementers must not only actively seek a licence; according to the Federal Court judges, they must also react in good time. The patent user must also examine the patent portfolio at relatively short notice.

According to the judges, implementers must act in a way that avoids the so-called ‘patent hold-out’, in other words using a delaying tactic to avoid paying a licence fee for as long as possible. For example, the implementers can do this by declaring their interest in a licence. However, the party might then not work towards the conclusion of a licence.

German courts align

Interestingly, while the senate of Ulrike Voß followed the Sisvel vs. Haier reasoning in the two Dolby judgments, the Philips judgment remains pending at the senate of Thomas Kühnen. The latter judge is notoriously outspoken against the Karlsruhe court’s approach to FRAND licensing.

Via Licensing

Tilman Müller

In the Sisvel vs. Haier case, trial observers saw the ruling as a strong contrast to case law from the Düsseldorf patent courts, and more in line with the Mannheim and Munich patent courts. Now the Düsseldorf courts are more aligned with Munich. Observers suggest that this ruling is another step along the path of appealing to patentees to file cases in Germany.

Furthermore, proceedings at the Mannheim Regional Court between Fraunhofer and TCL have now concluded, with one case pending in the first instance and stayed. In the other case, the judges rendered a negative first instance decision. Klaka, on behalf of TCL, have filed an appeal before the Karlsruhe court.

Two further cases are pending in Düsseldorf at the first instance. One is another Dolby patent against TCL, with the other filed by Japanese IT corporation NEC against TCL.

Who’s who in patent

In the three cases against Philips, Dolby and Fraunhofer, TCL has different German legal representation. Vossius, led by partner Andreas Kramer, represents TCL in the cases against Dolby. Patent attorney Christian Sandweg also worked on the nullity aspects of the case.

For the Philips case, the Düsseldorf office of CMS Hasche Sigle represented TCL. Although the team has frequently changed for TCL against Fraunhofer, the latest firm to lead proceedings for TCL is Klaka. The IP boutique represented the company in both Mannheim and Karlsruhe, taking over the two cases in 2018 for its first instruction for the company.

Via Licensing

Andreas Kramer

The Hamburg-based mixed IP firm Eisenführ Speiser is representing both Dolby and Philips. The firm has worked with Philips since around 2010, with its relationship to Via Licensing and other members such as Dolby going back to 2014.

The firm also represents Fraunhofer in the now-concluded Mannheim proceedings.

For Philips/Dolby
Eisenführ Speiser (Hamburg): Tilman Müller, Volkmar Henke (partners); Stefan Wiethoff (partner, patent attorney)

For TCL against Dolby
Vossius & Partner (Munich): Andreas Kramer (partner, lead); associates: Hannes Obex, Philipp Widera; Christian Sandweg (partner, patent attorney)

For TCL against Philips
CMS Hasche Sigle (Düsseldorf): Markus Deck; associate: Sven Krause

For TCL against Fraunhofer
Klaka (Düsseldorf): Olaf Giebe, Wolfgang Götz (partners)
Gulde & Partner (Berlin): Nicolas Haße

Higher Regional Court Düsseldorf, Düsseldorf
Ulrike Voß

PlatoAi. Web3 Reimagined. Data Intelligence Amplified.
Click here to access.

Source: https://www.juve-patent.com/news-and-stories/cases/sisvel-vs-haier-dusseldorf-court-follows-case-law-in-via-licensing-and-tcl-dispute/

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