Apple Inc. v. Samsung Electronics Co. Ltd. et al

Filing 900

NOTICE by Apple Inc.(a California corporation) Translations of Foreign Authority (Attachments: #1 Exhibit 1, #2 Exhibit 2, #3 Exhibit 3, #4 Exhibit 4, #5 Exhibit 5, #6 Exhibit 6, #7 Exhibit 7, #8 Exhibit 8, #9 Exhibit 9, #10 Exhibit 10, #11 Exhibit 11, #12 Exhibit 12, #13 Exhibit 13, #14 Exhibit 14, #15 Exhibit 15, #16 Exhibit 16, #17 Exhibit 17, #18 Exhibit 18, #19 Exhibit 19, #20 Exhibit 20, #21 Exhibit 21, #22 Exhibit 22, #23 Exhibit 23, #24 Exhibit 24, #25 Exhibit 25, #26 Exhibit 26, #27 Exhibit 27, #28 Exhibit 28, #29 Exhibit 29, #30 Exhibit 30, #31 Exhibit 31, #32 Exhibit 32, #33 Exhibit 33, #34 Exhibit 34, #35 Exhibit 35, #36 Exhibit 36, #37 Exhibit 37, #38 Exhibit 38, #39 Exhibit 39, #40 Exhibit 40, #41 Exhibit 41, #42 Exhibit 42, #43 Exhibit 43, #44 Exhibit 44, #45 Exhibit 45, #46 Exhibit 46, #47 Exhibit 47, #48 Exhibit 48, #49 Exhibit 49, #50 Exhibit 50, #51 Exhibit 51, #52 Exhibit 52, #53 Exhibit 53, #54 Exhibit 54, #55 Exhibit 55, #56 Exhibit 56, #57 Exhibit 57, #58 Exhibit 58, #59 Exhibit 59, #60 Exhibit 60, #61 Exhibit 61, #62 Exhibit 62, #63 Exhibit 63)(Selwyn, Mark) (Filed on 5/7/2012)

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Exhibit 60 VI FINAL CONSIDERATIONS This study has outlined the numerous uncertainties surrounding the patent license agreement system. In the end, everything is subject to discussion. The most fundamental aspects, such as a licensee’s right to take action against an infringer302, or the outcome of an agreement in the case of a cancellation303 have been the subject of various assessments, even of diverging decisions. It is therefore startling that the companies who make use of this contractual technique would not have requested a specific regulation for it. This apparently content attitude can truly only be explained in the two following ways: either they are unaware of the uncertainties affecting the license system, as well as of the risks implied, or – and this is a more likely explanation – they believe they can settle all the questionable issues in a satisfactory manner through specific provisions, thanks to the contractual autonomy they enjoy. Regarding the solutions which are advocated by the doctrine and have been adopted by case law, it is clearly the amalgamation of the license agreement with the lease system which calls for the strongest reservations. In the preceding pages, I used this amalgamation as a working assumption, and I simply strived to show that certain situations which are encountered in the field of licenses – voiding of the patent – for instance – were erroneously likened to those occurring in the field of leases – eviction, or its imperfection304. Often, those in favor of this amalgamation were not even consistent305. But such is not the most important matter at hand. The fact that there are some similar points between licenses and leases is unquestionable306. But such similarities should not lead to apply to licenses rules that are not convenient. In certain cases, one is compelled not to accept all of the consequences of the amalgamation, and the lease system is thus harmed: just refer to the license transfer and the granting of sublicenses issues307, or also to the automatic renewal issue308. Moreover, the application mutatis mutandis of lease rules is most of the time useless. Apart from the licensor's warranty obligation duty, all of the parties’ obligations can be deducted from the nature of the convention itself, and can be based upon the principle of execution in good faith309. Finally, the amalgamation leads to unfair results for the licensor, as in the case of warranty obligation. To begin with, to seek to include in an exceptional system – exceptional in that it’s not based upon fault – designed for a specific contract a nameless contract such as a license is quite questionable. Such extrapolation becomes utterly questionable when the system at hand has been intended for corporeal goods, which have nothing in common, in terms of their complexity, with incorporeal goods such as inventions310. It                                                              302 See the French and Belgian decisions wrongly allowing the licensee to act in unfair competition against the counterfeiters: above, p. 182.  303 See above, p. 214-221  304 See above, p. 215  305 See above, p. 207, some French authors who conclude to the invalidity of a license granted to a counterfeiter, instead of drawing on the solution agreed upon in the case of a lease concerning another’s property.  306 See above, p. 174  307 See above, p. 197  308 See above, p. 221  309 The only exception is the resumption of license agreement obligations by the patent buyer, in the case when a license has a specific date (see above, p. 171 and note 7.) It apply only to Belgium anyway, since in France this solution is based upon a patent law express provision (see above, p. 171, and note 10.)  310 See my own remarks above, p. 217.  ensues that overly heavy responsibilities are being placed upon the licensor, such as warranting the licensee against the existence of a previous personal ownership right which would be quite impossible for him to foresee, since ownership of the invention prior to filing is necessarily kept secret311. It would seem more reasonable to consider that the licensor’s obligation to insure the licensee the peaceful enjoyment of an invention finds its assent in obligations common law, and that, should the promised result not be reached, the licensor would still be able to avoid any responsibility if he/she were able to demonstrate a discharging external cause.                                                              311 See above, note 236. 

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