GRUR international最新文献_第6页

Revisiting the Framework for Compulsory Licensing of Patents in the European Union – Reflections on the European Commission’s Initiative 重新审视欧盟专利强制许可框架——对欧盟委员会倡议的反思

GRUR international Pub Date : 2023-04-08 DOI: 10.1093/grurint/ikad029

Matthias Lamping, Pedro Henrique D Batista, Juan Ignacio Correa, Reto M Hilty, Daria Kim, Peter R Slowinski, Miriam Steinhart

{"title":"Revisiting the Framework for Compulsory Licensing of Patents in the European Union – Reflections on the European Commission’s Initiative","authors":"Matthias Lamping, Pedro Henrique D Batista, Juan Ignacio Correa, Reto M Hilty, Daria Kim, Peter R Slowinski, Miriam Steinhart","doi":"10.1093/grurint/ikad029","DOIUrl":"https://doi.org/10.1093/grurint/ikad029","url":null,"abstract":"Abstract Within the scope of its initiative on ‘Compulsory Licensing in the EU’,8 the European Commission launched a call for evidence on 1 April 2022 and a public consultation on 7 July 2022 with the aim of gathering views from stakeholders. The objective of this initiative is to explore the possibility of revising the framework for compulsory licensing in the EU to make it more ‘adequately prepared and coordinated to tackle future crises’.9 The authors of this position paper welcome the Commission’s attempt to reinvigorate the public discourse on this important subject. Depending on the issue to be addressed and the extent of the Commission’s willingness to reform, different regulatory approaches are conceivable. Subject to compatibility with the principles of subsidiarity and proportionality, these include: Rather than making concrete recommendations on the regulatory approach, this paper addresses selected aspects by way of a preliminary, non-exhaustive note on: the proposed reform’s scope and the grounds for a compulsory licence; the requirements of prior negotiation and licensing failure; government use; procedural matters; compulsory licences for patent applications and products; the relation with other regulations and sui generis regimes (i.e. trade secret protection, regulatory data protection and supplementary protection certificates); the concept of adequate remuneration; compulsory licences for European patents with unitary effect; and the exhaustion of products placed on the market under a compulsory licence. – soft law measures, such as guidelines and recommendations; – harmonisation of national laws (substantive and/or procedural);10 – judicial cooperation (i.e. mutual recognition of judgments and of decisions in extrajudicial cases);11 – centralisation of granting and/or judicial review competences; – creation of a supranational compulsory licence; – or any combination thereof.","PeriodicalId":487734,"journal":{"name":"GRUR international","volume":"236 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-04-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135648145","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 1

Proportionality Defenses in FRAND Cases: a Comparative Assessment of the Revised German Patent Injunction Rules and U.S. Case Law FRAND案件中的比例抗辩:修订后的德国专利禁令规则与美国判例法的比较评估

GRUR international Pub Date : 2023-03-18 DOI: 10.1093/grurint/ikad024

Peter Georg Picht, Jorge L Contreras

{"title":"Proportionality Defenses in FRAND Cases: a Comparative Assessment of the Revised German Patent Injunction Rules and U.S. Case Law","authors":"Peter Georg Picht, Jorge L Contreras","doi":"10.1093/grurint/ikad024","DOIUrl":"https://doi.org/10.1093/grurint/ikad024","url":null,"abstract":"Abstract In August 2021, the ‘Second Act for the Modernization of Patent Law’ (Zweites Patentrechtsmoderni-sierungsgesetz) introduced an explicit proportionality defense into Sec. 139(1) German Patent Act. Unlike the competition law or national contract law prong of the Huawei defense in FRAND cases, the proportionality defense thus derives from the GPA itself. The new provision has already generated much debate and some initial case law. According to public knowledge, however, it has not yet been raised in a German FRAND case, although it seems inevitable that this will happen. Hence, this article offers to market participants and the judiciary a proposed analytical framework for considering such a proportionality defense in German FRAND cases. For this purpose, it undertakes a comparative assessment of U.S. patent injunction law. As to German law, the focus is on whether the proportionality defense and the FRAND license defense can be raised in parallel, whether FRAND royalties are a suitable basis for calculating an appropriate financial compensation under Sec. 139(1)(4) and how a court should assess whether the impact of an injunction in a FRAND case triggers the proportionality defense.","PeriodicalId":487734,"journal":{"name":"GRUR international","volume":"103 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-03-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135245117","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

Data Access under the Draft Data Act, Competition Law and the DMA: Opening the Data Treasures for Cowmpetition and Innovation? 数据法草案、竞争法和DMA下的数据访问:为竞争和创新打开数据宝藏?

GRUR international Pub Date : 2023-03-08 DOI: 10.1093/grurint/ikad012

Heike Schweitzer, Axel Metzger

{"title":"Data Access under the Draft Data Act, Competition Law and the DMA: Opening the Data Treasures for Cowmpetition and Innovation?","authors":"Heike Schweitzer, Axel Metzger","doi":"10.1093/grurint/ikad012","DOIUrl":"https://doi.org/10.1093/grurint/ikad012","url":null,"abstract":"Abstract In the ongoing transformation from ‘industrial capitalism’ towards an ‘informational capitalism’, one of the core challenges is for the law to design and enforce an appropriate legal framework for access to and use of data. Focusing on access to data generated by the use of products or online services (product and online services usage data), the aim of this paper is to describe and systematize the core elements of this legal framework in the making and to provide some guidance on how it could be further developed. Access by the users of products or online services to the individual-level data that their usage generates must be distinguished from access to bundled individual-level and aggregated data by third parties. With regard to data co-generators’ access to individual-level product usage data, the Draft Data Act proposes to create new rights to access that will become part of a new private law infrastructure of data rights. These access rights are granted independently of whether the data holder is dominant. With regard to data co-generators’ access to individual-level services usage data, the Digital Markets Act (DMA) establishes rights of access only vis-à-vis gatekeepers within the meaning of the DMA. Third-party undertakings who request access to bundled individual-level or aggregated data can, as of now, only base their claim on Art. 102 of the Treaty on the Functioning of the European Union (TFEU) and – in the case of search data – on Art. 6(11) DMA. A regulatory approach has been proposed as an alternative. This paper strives to systematize this hodgepodge of approaches and discern the broader principles that can guide the legislature in creating and fleshing out the legal framework for data. Ideally, markets for bundled individual level or aggregated data will emerge based on the rights of data co-generators to access individual-level data. For this to happen, data intermediaries will have to play a larger role and succeed in bundling and marketing such data.","PeriodicalId":487734,"journal":{"name":"GRUR international","volume":"110 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-03-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136179499","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

Antitrust Unchained: The EU’s Case Against Self-Preferencing 反垄断的解放:欧盟反对自我优惠的案例

GRUR international Pub Date : 2023-03-08 DOI: 10.1093/grurint/ikad023

Giuseppe Colangelo

引用次数: 0