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U.K. Supreme Court Permits SEP Holders to Require Worldwide FRAND Licenses

On August 26, 2020, the U.K. Supreme Court—the U.K.’s highest court—issued its highly anticipated decision in Unwired Planet International v. Huawei involving the “Fair, Reasonable, and Non-Discriminatory” (“FRAND”) licensing of standard essential patents (“SEPs”) in the telecommunications space. The decision in several consolidated cases rejected all appeals from Huawei and ZTE and affirmed the decisions from the London High Court (Justice Birss) and Court of Appeals. The Court concluded that owners of patents essential to ETSI’s telecommunications standards (including 2G, 3G, and 4G (LTE)) can demand that an implementer practicing a U.K. SEP take a license on FRAND terms to all of the patent owner’s worldwide telecommunications SEPs, and can obtain an injunction should the implementer refuse. This decision has significant implications for FRAND licensing, assertion of SEPs, and antitrust issues both in the telecommunications context and more broadly.

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Can They Really Do That? The Specter of Government-Authorized Infringement of Pharmaceutical Patents

Practices: Intellectual Property, Life Sciences

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The perception that pharmaceuticals in the United States are overpriced, and that patent rights are why, has been a recurrent political theme over the last several years.  This view, along with the ongoing novel coronavirus pandemic, has caused some to consider whether the U.S. government should act to ensure affordable access to potentially life-saving medicines.

But under what authority could the U.S. government take action on patents in an attempt to lower drug prices or make a lifesaving product more widely accessible?  A team of Ropes & Gray intellectual property litigators, led by partners Matt Rizzolo, Filko Prugo, and Charlotte Jacobsen, has authored a white paper exploring the topic in depth.  The paper – titled Can They Really Do That? The Specter of Government-Authorized Infringement of Pharmaceutical Patents – offers a detailed look into two possible statutory levers that the federal government could pull.  The authors also discuss the important roles that the Food, Drug, & Cosmetic Act and the fragmented nature of the U.S. health care system may play in any government-authorized infringement or compulsory licensing efforts.  Finally, they discuss a variety of legal and policy avenues that patent holders may employ if their patent rights are threatened by the government, up to and including constitutional claims.

Click here to read the full Whitepaper.

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