Competition, innovation and IP – a modest proposal

On 27 January we co-hosted an event with CIPA. You can find the details here, if you’re interested.  There was a tremendous panel of speakers (I wasn't one of them!) and it was really well attended. The fact that so many people turned out on a chilly Monday in January made me think about the importance of  the issue that the panel was discussing:  whether the Commission’s competition cases are harming innovation. The level of interest suggested to me that perhaps people would be interested in a series of blog posts about the potential impact on innovation of competition law enforcement activities – if you are (and if you aren't) please let me know.

As my earlier blog entries hint (particularly the one discussing the speeches last December by  EU Commissioner Almunia and FTC Commissioner Olhausen – see here), I think that this is an issue that perhaps doesn't get the serious treatment that it deserves in EU Commission policy circles. I have been thinking about the impact of competition cases and policy on innovation for quite a while - on and off between other things - and I've been thinking about the correct balance between IP and competition law since the period around the adoption of the first patent licensing block exemption and the first know how licensing block exemptions (1984/1989 respectively - which makes me feel quite elderly).

Both during that time and subsequently, the way in which the interrelationship between IP, Competition Law and innovation is perceived has changed – a lot.  The EU has not been alone in this. There has been a similar evolution, beginning rather earlier and perhaps going rather further, in the US.  As Steven Anderman and Hedwig Schmidt point out in their excellent book on the Regulation of Innovation,  an Assistant Attorney General commented in 1967:  "I do not believe that the impact of antitrust on patent licensing restrictions has any effect on innovative activity whatsoever…"; no such statement is likely today.

By the early 1980s, the ECJ’s decision in Nungesser (Maize Seeds - June 1982) was part of a general sense of a changing understanding of the way in which IP law and competition law could work together. This evolution has to some extent continued, at least in the field of IP licensing and Article 101 - although recent developments on the draft revised TTBE do give me some pause for thought, even in that context.

However, since the late 1980's developments under Article 86/82/102 in the line of cases beginning with the Volvo v Veng and Renault v Maxicar litigation have made me think that a real tension remains between competition law, as it is evolving in the EU, and giving effective weight in the policy balance to preserving long term incentives to innovate, respecting the way in which IP approaches that challenge.

At the moment, my working theory is that, while competition law as applied in the EU is reasonably well-equipped, at least in principle, to take into account short term direct incentives to innovate and related efficiencies, it is not at all good at taking more systemic incentives and effects into account or in dealing with any long term issues at all.  On the other hand, the IP system has created incentives which are directed both at specific innovation/innovators and have also provided systemic support for innovation (although economists debate how effective the IP system is in fulfilling these goals).   It seems that the difference between the specific and the systemic, the short term and the long term, is a genuine potential source of tension which needs to be properly considered and articulated if tension is to be reduced and a balance struck.

The current public stance of the EU Commission is that all is harmony, as articulated by Commissioner Almunia: "In their different ways, both the patent system and the system that enforces competition law in the EU pursue common goals.  A well-functioning IPR system can in fact promote competition by encouraging firms to invest in innovation.  And both competition policy and the intellectual-property protection system do contribute to create the right framework for innovators."  Joaquin Almunia, Commissioner for Competition: "Intellectual Property and Competition Policy" 9 December 2013.

But I am not sure that things are that simple.  And I don’t think it’s that simple, not because competition law and IP law are necessarily at loggerheads at a policy level, or because competition enforcers do not appreciate the worth of innovation, but because I think that over the years competition law enforcement has focussed ever more closely on the immediate and the short term, leaving considerably less room for more expansive horizons. And I am not alone in being concerned about the current state of the law and the lack of clarity surrounding its development and where it is going. If this is an issue close to your heart it is worth looking at the Chillin' Competition Blog, where Nicolas Petit has posted the slides that he prepared for a talk on this topic in Madrid at the end of October 2013.  

The sort of developments that concern me are things like:

  • the increasing propensity to identify ‘object’ restrictions where conduct appears likely to have a significant effect on price competition;
  • the tendency to identify "normal competition" or "competition on the merits" as closely focussed on short term price, service and quality - and very limited discussion of where the boundaries of that concept should properly lie to account for all aspects of competition in a modern economy;
  • the tendency to preclude dominant companies from engaging even in "competition on the merits", or "normal competition" through the articulation of a "special responsibility" which is so amorphous as to mean anything that seems convenient at the time;
  • lots of "novel abuses" popping up in sectors where innovation is critical to competition;
  • a predisposition to take much greater account of preserving or encouraging immediate and demonstrable short term gains in lower prices or greater competition in quality over less quantifiable potential benefits from innovation in the round; and
  • a real scepticism about claims that periodic competition enforcement which affects the exercise of certain IP rights will actually affect innovation much at all.

The final point is clearly a problem in trying to persuade hard pressed officials that solving an immediate competition concern will give rise to greater competition/innovation difficulties down the line - perhaps the 1967 quote from the US, mentioned above, also reflects some current thinking?

As far as I know, there is limited empirical evidence of quite how competition law enforcement, which could be perceived as undermining some of the incentives built into the IP system, affects innovation. There is also some debate about how effective IP is at encouraging genuine innovation, at least in some sectors.  There are even (at least) two schools of economic  thought on which system of law is best suited to achieve market innovation (of which more in a later blog – particularly if we can persuade a guest economist to write a contribution!).

In view of this, sceptics point out that notwithstanding the Commission’s actions in the sphere of IP (particularly those relating to compulsory licensing and other "novel abuses" over the last 15 or 20 years) the number of patents being granted has continued to rise and there has been no notable slow down of innovation. Some have referred to the tendency of IP-rich companies/innovators to cry "WOLF!" loudly and repeatedly every time any potential competition law encroachment on IP rights is raised; the same commentators have noted that no wolf has yet been spotted.

These are points that need to be thrown into the debate. But also we shouldn’t forget that the broad incentives which are in principle provided by the IP system have been well understood by companies and individuals for decades, while not everyone is so familiar with activities in Brussels and Luxembourg. The evolution of the Article 102 case law, in particular, has been incremental and fairly slow; reaching an understanding of what is "exceptional" use of an IP right or outside the scope of "normal competition" has taken time, and remains unclear.  There will be inevitable delay before the potential pitfalls for IP owners that may emerge from the finer points of cases such as Microsoft or AstraZeneca have any impact (other than a growing sense of unease) outside the largest and most astute corporations.

In other words, the effects may be there, but difficult to spot at the moment, and also masked by other trends. A Commission official once remarked to me, when I pointed out that there was very significant actual competition in a particular sector of interest to DG Comp: "Just because you can point to some competition, doesn't mean that, in the absence of the [conduct complained of], there would not have been more…" and it seems to me that if that is a legitimate approach when justifying a decision to intervene on competition grounds, it cannot simply be dismissed when talking of other important policy issues.

It may well be accepted (and I think that implicitly it has been – although this is also something to discuss) that from time to time competition law acts as a "second tier" of regulation to tweak unforeseen and unwelcome consequences of some aspects of the IP system. In those circumstances, however, given that IP has its own specific mechanisms and policy objectives there should be a much clearer understanding of the issues to be addressed when considering intervention.  Specific enforcement action in particular circumstances is often capable of being justified on the basis of the case law as it currently stands, given the woolly nature of many of the governing concepts. Such specific decisions do not, as far as I can tell, currently have regard to broader concerns about a possible chilling effect or to their impact beyond the parties and consumers directly affected.

In my view there are good reasons to have a public debate, which may take some time, to help develop policy frameworks to help clarify when it may be right to even consider (or reject) intervention in the first place.  Transparency on issues such as the value given to innovation and to systemic concerns could help dispel fears about the role of competition law as "overseer" of IP law.

I suppose that I am suggesting that when competition law is considering intervention in another policy area, which has its own objectives, tools and time frame, there should be a specific commitment to acknowledge that fact.  That could include a clear statement that when deciding on the appropriateness, nature and scope of any intervention in such an area, weight will be given to potential effects on the effectiveness of parallel policies in helping to achieve the same broad goal of consumer welfare.  How that would be done is of course a difficult question, but at least acknowledging the possibility for some tension, rather than dismissing it out of hand, and undertaking to consider the implications would be a step forward.

Over the next few months I’ll come back to this, but comments [by email or on the blog] would be welcome.

Pat Treacy

Divisive divisionals - more on the Consiglio di Stato Pfizer judgment

Courtesy of our friend Daniela Ampollini of Trevisan Cuonzo, we have now seen an unofficial translation of the recent Consiglio di Stato (CS) judgment in the Pfizer Xalatan/latanoprost case.  We have already referred readers to Daniela’s own excellent article on this case here, and we share her views about the absurdity of a ruling which finds an infringement of Article 102 on the basis that patents, and related rights, have the effect of excluding competitors. 

But is there anything else we can take from the judgment, other than this kneejerk reaction?  It is important to try to do so, so that the next time we (as lawyers) or our clients (as business people) see a similar situation, we can recognise the risks, even if – being based in the UK, we do not have to face the Italian Competition Authority (ICA).

So, looking beyond what is right and wrong for the purposes of patent law, it seems that there are two main objections to the scheme which led to the ICA, and now the CS, to identify a competition law infringement.  The first is that Pfizer based its applications for a Supplementary Protection Certificate (SPC) and paediatric extension on a divisional patent which did not protect a different product from that protected by the original patent. (While two divisionals of the same parent patent application could protect different innovative products, it is inherently unlikely that the same can be said of a divisional and parent, given that the divisional must contain the same subject matter*.)  As Pfizer was out of time to obtain an Italian SPC on the original (parent) patent, it obtained the divisional – it appears – solely in order to allow it to obtain such additional protection, and thus regularise its patent expiry position around the EU.  This mechanism was criticised by the CS as “artificial”.  It is certainly true that divisional patents are more commonly used where the applicant believes that the parent patent may not survive examination before grant – once Pfizer had a granted patent covering the molecule, arguably the usual commercial reason for needing a divisional fell away.  It seems unlikely that the case would, or could, have been brought if Pfizer had simply used the parent patent to obtain the SPC, or if the divisional patent was necessary for Pfizer to retain patent protection over the latanoprost molecule.

The second motivating factor seems to have been how late in the day Pfizer applied for its divisional.  The CS, following the ICA, notes that generic companies were basing their preparations to enter the market on an assumed date of expiry of the original patent.  This was frustrated by Pfizer’s late application for the divisional (which did not itself extend the period of patent protection), something which was then compounded by the SPC and paediatric extension applications – repeated references are made by the CS to the “uncertainty” that this created for generics.  This seems to suggest that there is some kind of obligation of transparency at play.  If this is right, pharma companies are required to make their intentions clear not only to patent offices (as in AstraZeneca), but more generally towards the market (bearing in mind the competition rules on information exchange, of course).  It appeared for a while that the EPO agreed with the concern that late applications for divisionals was undesirable – but following a flirtation with a sunset period for divisional applications (2 years from the application for the parent), this new rule has been dropped as unworkable.

From a competition law perspective, however, this approach is broadly in line with the emerging policy at EU level which says that basic patent protection (classically protecting the pharmaceutical molecule itself), as legitimately extended by SPCs/paediatric extensions etc., is the maximum period of exclusivity to which pharma companies should be entitled.  Any other secondary patent protection is liable to be viewed with suspicion (look, for example, at what the Commission said in its Sector Inquiry and its submission to an OECD roundtable on Competition, Patents and Innovation in 2009: “it is increasingly being recognised that patents and the patent system may not always stimulate innovation but may also be used for other defensive purposes and may retard (follow-on) innovation”).  The oddity here is that the SPC protection obtained by Pfizer did not in fact extend its patent protection beyond the protection held in other countries, so if competition policy is really going to look at the broader question of how much exclusivity is “right” for society, balancing the interests of the innovator and consumers (i.e. in this case the Italian health authority), then here, no harm was sustained.  (Unless, perhaps, the Italian health authority can justify ‘free-riding’ on the health budgets of other EU health authorities, to the extent that their budgets are not reduced by knock-on reference pricing effects from reduced Italian prices...)

Although the CS pointed to “a complex and articulated conduct” (perhaps a nod to the Sector Inquiry ‘toolbox’?), the other factors – the sending of cease and desist letters, the intervention with the Italian transparency authority, and the litigation (which Pfizer did not start) – seem ancillary to the two key points identified above.  But the fact that they were ancillary does not of course mean that they were unnecessary to establish proof of the infringement: if Pfizer had made no attempt to assert its rights, or had acceded to the revocation proceedings, there would have been no, or significantly less, delay to generic entry.  But we can’t help reverting to our kneejerk reaction that this decision is wrong. Each and every one of Pfizer’s acts was a rational commercial one (and legal).  The suggestion seems to be that in itself, no single decision/action out of those listed would have constituted an abuse.  Yet the Court of Justice has endorsed the fact that a “strategy whose object it is to minimise the erosion of its sales and to enable it to deal with competition from generic products is legitimate and is part of the normal competitive process”, always provided of course, that there is no departure from the nebulous concept of ‘competition on the merits’.

The CS’s judgment is notable for its lack of engagement with any case law – just one cursory mention of AstraZeneca, no reference to whether Pfizer’s conduct constituted ‘competition on the merits’ and no discussion of whether the ICA had trampled on the ‘specific subject matter’ of Pfizer’s IP rights.  While the application of competition law to the obtaining of patent (and related) protection is akin to the first of the abuses identified by the Commission (and ultimately upheld by the CJEU) in AstraZeneca, in fact the reasoning on which this case is based is much more similar to the second abuse.  This second abuse involved AZ withdrawing marketing authorisations for the capsule form of Losec, an action which was entirely lawful under the relevant regulatory provisions, but the only purpose of which could have been to delay generic entry.  The absence of (any other) valid objective justification was explicitly noted as important in this part of AstraZeneca, and it was arguably important also in Pfizer.  But (kneejerk again) – what possible justification can any company give for applying for an exclusionary right, other than the wish to exclude competition?  And if that’s an intractable problem, here is another – how can companies ensure that competition law scrutiny happens at the stage when the relevant rights are being applied for?  Is it unfair to wonder whether most patent lawyers or agents would be likely to pick up on the need for competition law screening when making applications for rights of this kind?

* Our patent colleagues tell us that this is a simplification, as subject matter of the divisional patent which extends beyond the parent application can be remedied by amending the latter, even post-grant.

Global convergence on pharma deals close to patent expiry

I have noticed a couple of recent developments which seem indicative of increasing global convergence on conduct which might have the effect of delaying generic entry after patent expiry. 

One area is agreements between pharmaceutical companies and pharmacies. The last couple of months have seen Pfizer being investigated in Australia, and, as reported here the recent fine levied by the French Competition Authority (FCA) against Schering-Plough also related in part to this issue.

It was established in Reckitt Benckiser (an OFT infringement decision back in 2011) that the role of drug selection and dispensing in the pharmaceutical supply chain can give rise to potentially anti-competitive market distortions.  The key in both of these new cases (with the caveat that there are only a limited number of news reports in the public domain about the Pfizer investigation, which is at an early stage) appears to be the concern that pharma companies are buying prolonged exclusivity by entering into deals before patent expiry which leave pharmacies with a large surplus of stock, effectively eliminating demand for the newly entering generics and, in many countries, delaying price decreases.  The mechanisms used may be varied – Pfizer is alleged to have offered discounts conditional on pharmacies committing to minimum volumes of around 12 months’ worth of supplies of its Lipitor drug, while Schering-Plough offered discounts targeted at pharmacies which were the largest buyers of its Subutex product, as well as payment facilities (e.g. longer-term credit) and reductions for cash payment which were not usually offered to pharmacies.  The FCA concluded that the purpose of such schemes was exclusionary – designed to saturate pharmacies before the first generic entered the market and thus to delay full generic entry.  As with so many cases in this sector, it was the evidence of exclusionary intent which was crucial in finding that Schering-Plough had infringed the competition rules.  Without this evidence, the FCA may have found it more difficult to condemn a practice consisting primarily in straight-line volume rebates with no prolonged lock-in.  Equally, the competition authorities are clearly concerned about the impact on public health budgets of even short-term delays to generic entry, so it is unsurprising that they seek to look at fidelity-building effects over a shorter time period than in other sectors.

So far, the competition authorities have not turned their attention to other pricing practices which may be used around generic entry such as equalisation deals – indeed, unless there is actual lock-in, there is no reason why they should do, although the trend is now to challenge reduced generic uptake as well as actual delayed entry.

Another theme which goes beyond the originator-generic dynamic of patent settlement agreements is the scrutiny of possible agreements between originators or between generics. 

Again, the FCA is part of this dynamic, with its report on the distribution of medicines (here – in French only) listing a number of different types of potentially anti-competitive practice, notably around pricing where the French method of pricing across groups of drugs within the same therapeutic class appears to create the conditions for possible collusion. 

The US (District of New York) has recently sanctioned a generic-generic agreement between Teva and Ranbaxy.  This was again sparked off by the particular legislative background, in this case the Hatch-Waxman exclusivity regime for first generic filers.  It has been reported (e.g. here) that the two companies agreed not to challenge the first filer status (i.e. giving market exclusivity) of the other in relation to a number of drugs, in return for agreement about which of them would launch a generic of Pfizer’s Lipitor. 

While the particular regulatory context in the relevant jurisdiction clearly has an impact on the competitive impact of agreements of this kind, the ‘take home message’ is that any agreement or practice which may delay effective generic entry could be challenged, even if it is not a classic ‘pay-for-delay’.

Sophie Lawrance

Consiglio di Stato reinstates Pfizer €10.7 million Xalatan/latanoprost fine

Those of you following this case might be interested to read this post by Daniela Ampollini of Trevisan & Cuonzo.  The Consiglio di Stato’s reasoning, to the extent that it is translated here, is weak at best, relying as it does on the fact that the IP right was “used artificially, for a goal which is incoherent with that for which such a right is granted: in this case, the exclusion of competitors from the market.”  

The Italian competition authority had relied heavily on Pfizer’s “exclusionary intent”, but as Daniela says: “[b]y no means can it be accepted that enforcing patent rights is abusive when the aim is the exclusion of competitors…”  The very point of having patent rights in this sector is that they are exclusionary.  

The judgment highlights again the significant weight attributed to contemporaneous evidence of intent in competition cases in the pharma sector.  Especially if an innovator might be considered to be in a dominant position, it must take care to avoid any language which might suggest an anti-competitive intent.  The focus, both in strategy and language, should always be on protecting IP and other legitimate rights, rather than on exclusion per se.

Teva / Cephalon merger decision – no reason to nod off

With typical rapidity (ahem), the full text of the Commission merger decision in Teva/Cephalon has been published two years and four months after it was notified to the parties.

While the main decision – authorisation of the merger subject to divestment of Cephalon’s generic version of its Provigil (modafinil) drug, treating narcolepsy – is old news, the Commission’s reasoning contains some interesting indications of its policy in the pharma field, not least in relation to patent settlement agreements. 

Looking first at the market definition analysis, the decision is typical in that it does not reach a firm conclusion on any of the markets where potential overlaps were identified and even for the divestment product the Commission concludes that competition concerns arose even on the widest market identified by the parties.  There are, however, a number of indications about the Commission’s thinking, and those indications exhibit a preference for narrow markets over a more standard (in the pharma context) ATC3 analysis.  Given that this tie-up was between a (mostly) generic company and an originator, this is not especially surprising – the Commission’s practice in such cases is to look for all possible markets where the parties may have substitutable products.  Whereas in a merger between innovators, ATC3 or 4 would be most likely to produce overlaps, here, narrower markets and higher market shares are more likely to indicate potential competition concerns.  In this case, as a few years ago in Sanofi-Aventis/Zentiva, the Commission notes that generic products are usually the closest substitute for those of originators as they are specifically designed to compete with the originator’s medicine.  Even if a relevant market may be wider than just the molecule, “the competitive constraints stemming from the generic version [of the relevant molecule] would […] be significantly stronger than any […] competitive pressure from other molecules under any market definition”.

More novel is the suggestion that the narrowest possible relevant market may be even narrower than the pharmaceutical molecule.  This could be the case where a particular dosage, pharmaceutical form or route of administration is used – the Commission refers to “New Form Codes” used by IMS and EphMRA which distinguish between e.g. topical/systemic administration and between long-acting and ordinary forms.  Anyone want to bet against such narrow market definitions being adopted in an abuse of dominance case?

Regardless of the introductory paragraphs, the only overlap which is analysed in depth in the decision is in relation to modafinil, where Teva had a pipeline generic product.  Indeed, the role played by potential competition (as is appropriate for pipeline products) is possibly the most interesting part of the decision.  The outcome of the Commission’s analysis is that Teva, a company which did not have its own product on the market, was to be regarded as a potential competitor, whereas other generic companies, which actually marketed generic products at the time, were not to be counted as actual or potential competitors.  The reason for this counterintuitive finding, at least so far as the third party generics are concerned, is the existence of a Cephalon patent against which the generic companies had entered at risk.  Due to the continued patent protection, and the fact that Cephalon had asserted the patent against all of the existing entrants, the decision notes that the generics’ access to the market was not guaranteed to be “sustainable” and proceeds on the basis that these market players should be disregarded. 

While this is expressed as a “conservative” basis on which to proceed, it had the significant consequence of requiring a divestment remedy on the part of Cephalon (although it could be assumed that withdrawing the patent litigation would have had the same outcome…*).  It also assumes the very opposite to what appears to have been concluded in the recent Lundbeck patent settlement decision (so far as can be judged from the details of the appeals and from the Commission press release – someone please assure me that it isn’t going to be over two years until this is made public?!), where the generic companies are treated as potential competitors of Lundbeck even in cases where they had not yet entered the market.  Here, by contrast, it is assumed that Cephalon would have gone on to prove that its patent (protecting the particle size of modafinil) was valid and infringed by the generics.  This is a significant assumption, particularly given that the UK designation of the patent had, at the time of the decision, been revoked by the English High Court, and Cephalon had failed to obtain interim injunctive relief in cases in other jurisdictions.

Leaving this discrepancy aside, the approach to potential competition in the merger decision appears quite reasonable, with three key issues identified as determinative of the existence of potential competition at the level of generics:

  1. Has a generic version of the originator drug been developed?
  2. Has a marketing authorisation (MA) been granted?
  3. Does the generic have the right continuously to market its product in the period up to patent expiry – i.e., is the product blocked by an existing patent?

As regards the conclusion that Teva was a potential competitor despite not marketing the product, there is some interesting discussion of the difference in competitive terms between having an application for a first MA and having a lapsed MA.  Where there is actual competition from other generics the Commission’s conclusion seems to be that there is not much difference between the two situations (as the existing competitors can quickly mop up market share previously held by the exiting company), but in circumstances where there is no other competition, a lapsed MA is likely to allow a company to come (back) to market more rapidly than where a new MA has to be applied for. 

Attentive readers will wonder why Cephalon’s patent was not regarded as liable to exclude Teva also.  The answer is in the link with the Commission’s ongoing antitrust investigation.  The merger decision describes what is assumed to be the factual basis for this investigation (at paragraph 95).  It appears that in 2005, Teva entered at risk with a generic of Cephalon’s Provigil, in response to which Cephalon applied for a PI under its “particle size” patent.  Following a settlement agreement, Teva agreed to postpone entry until 3 years prior to patent expiry (or earlier in the event of the launch of another generic), and was also appointed as the exclusive distributor of Cephalon’s modafinil products.  In line with the concerns expressed about early entry agreements in the 4th patent settlement monitoring report (see discussion here), it appears that the Commission is indeed investigating such an agreement.  How it proposes to find an infringement (which presumably relies on Teva being a potential competitor at the time when the agreement was entered into) without contradicting its conclusions in this merger decision (which excludes a finding of potential competition if the market entry could prove to be unsustainable) remains to be seen.


* This might of course have resulted in an “invalid” patent remaining on the register, another of the Commission’s pet hates.  Expect more from us on this topic soon…

Sophie Lawrance 

HTC v Nokia (UK) - no case for exhaustion....

The patent dispute between HTC and Nokia (which recently settled - days before the ITC was due to rule on the first two of Nokia’s complaints against HTC – for Nokia’s press release see here) generated some noteworthy English judgments which are worth a mention...  

First, in October 2013, Mr Justice Arnold handed down a judgment (see herethat considered ‘non technical patent defences’ based on U.S. patent exhaustion and English implied licence issues asserted by HTC.  Such non technical defences often arise in litigation involving multi-component devices (in this dispute smartphones) where a patentee licenses a component manufacturer abroad and an end device manufacturer purchases a component from the component manufacturer and incorporates it into its devices.  Whilst the judgment is fact specific and complicated by confidentiality issues, Arnold J applies the English doctrine of implied licence in some detail and in particular highlights the distinction between: (i) a patentee; and (ii) a licensee selling a patented product abroad and the consequences of that distinction when the product is subsequently imported into the UK.  If you are interested, a short case comment we wrote recently for the Journal of Intellectual Property Law & Practice discusses this case in more detail can be found here.  

HTC’s licence defences ultimately failed and Nokia’s (non-essential) patent was upheld as valid and infringed.  A second judgment from Arnold J followed on 3 December 2013  (see here) which addressed whether Nokia should be entitled to an injunction for that patent.  For anyone interested in the availability of injunctive relief for patents as a general matter it is worth a read.  He considers the leading English judgments on injunctive relief for patents and explains his view on how any perceived inconsistencies should be rectified, particularly in the light of the Enforcement Directive and TRIPS.  Much of the current debate on injunctions is of course focused on SEPs.  However, this judgment evidences the English Court’s considerable discretion as to whether to grant injunctive relief for any patent regardless of its essentiality (or lack of).....

<Helen Hopson