Compulsory licensing of standard-essential patents and injunctive relief as abuse of dominant position in violation of Article 102 TFEU

When a dominant undertaking holding a standard-essential patent uses its exclusive right to the IP to seek injunctions against those wishing to produce either de jure or de facto standard compliant products, it creates a conflict between the exclusive right to the use of the IP on the one hand and the possible abuse of dominance due to the exclusionary conduct on the other. The aim of the thesis is to focus on the issues concerning abuse of dominance in violation of Article 102 TFEU when the holder of the standard-essential patent seeks an injunction against a would-be licensee. The thesis is mainly based on the most recent ECJ case law in Huawei and the Commission’s recent decisions in Samsung and Motorola. The case law in Europe prior to those decisions was mainly focused on the German case law from Orange Book Standard which provided IP holders great leverage due to the almost automatic granting of injunctions against infringers. The ECJ in Huawei set out the requirements for when a de jure standard-essential patent holder would not be violating Article 102 TFEU when seeking an injunction, requiring that negotiations in good faith must take place prior to the seeking of the injunction and that all offers must comply with FRAND terms, thus limiting the scope of case law derived from Orange Book Standard in Germany. The ECJ chose not to follow all of the reasoning the Commission had laid out in Samsung and Motorola which provided a more licensee-friendly approach on the matter, but rather chose a compromise between the IP holder friendly German case law and the Commission’s decisions. However, the ECJ did not disclose how FRAND terms themselves should be interpreted, but rather left it for the national courts to decide. Furthermore, the thesis strongly argues that Huawei did not change the fact that only vertically integrated IP holders who have made a FRAND declaration are subject to the terms laid out in Huawei, thus leaving non-practicing entities such as patent trolls and entities that have not made a FRAND declaration outside its scope. The resulting conclusion from the thesis is that while the ECJ in Huawei presented new exceptional circumstances for when an IP holder could be abusing its dominant position when it seeks an injunction, it still left many more questions answered, such as the meaning of FRAND and whether deception in giving a FRAND declaration is prohibited under Article 102 TFEU or not.

Computing abuse related damages in the case of new entry: An illustration for the Directory Enquiry Services market

A number of European countries, among which the UK and Spain, have opened up their Directory Enquiry Services (DQs, or 118AB) market to competition. We analyse the Spanish case, where both local and foreign firms challenged the incumbent as of April 2003. We argue that the incumbent had the ability to abuse its dominant position, and that it was a perfectly rational strategy. In short,the incumbent raised its rivals' costs directly by providing an inferior quality version of the (essential) input, namely the incumbent's subscribers' database. We illustrate how it is possible to quantify the effect of abuse in situation were the entrant has no previous history in the market. To do this, we use the UK experience to construct the relevant counterfactual, that is the "but for abuse" scenario. After controlling for relative prices and advertising intensity, we find that one of the foreign entrants achieved a Spanish market share of only half of what it would have been in the absence of abuse.

The abuse of intellectual property rights and regulations in China: a law and economic analysis

From the institutional point of view, the legal system of IPR (intellectual property right, hereafter, IPR) is one of incentive institutions of innovation and it plays very important role in the development of economy. According to the law, the owner of the IPR enjoy a kind of exclusive right to use his IP(intellectual property, hereafter, IP), in other words, he enjoys a kind of legal monopoly position in the market. How to well protect the IPR and at the same time to regulate the abuse of IPR is very interested topic in this knowledge-orientated market and it is the basic research question in this dissertation. In this paper, by way of comparing study and by way of law and economic analyses, and based on the Austrian Economics School’s theories, the writer claims that there is no any contradiction between the IPR and competition law. However, in this new economy (high-technology industries), there is really probability of the owner of IPR to abuse his dominant position. And with the characteristics of the new economy, such as, the high rates of innovation, “instant scalability”, network externality and lock-in effects, the IPR “will vest the dominant undertakings with the power not just to monopolize the market but to shift such power from one market to another, to create strong barriers to enter and, in so doing, granting the perpetuation of such dominance for quite a long time.”1 Therefore, in order to keep the order of market, to vitalize the competition and innovation, and to benefit the customer, in EU and US, it is common ways to apply the competition law to regulate the IPR abuse. In Austrian Economic School perspective, especially the Schumpeterian theories, the innovation/competition/monopoly and entrepreneurship are inter-correlated, therefore, we should apply the dynamic antitrust model based on the AES theories to analysis the relationship between the IPR and competition law. China is still a developing country with relative not so high ability of innovation. Therefore, at present, to protect the IPR and to make good use of the incentive mechanism of IPR legal system is the first important task for Chinese government to do. However, according to the investigation reports,2 based on their IPR advantage and capital advantage, some multinational companies really obtained the dominant or monopoly market position in some aspects of some industries, and there are some IPR abuses conducted by such multinational companies. And then, the Chinese government should be paying close attention to regulate any IPR abuse. However, how to effectively regulate the IPR abuse by way of competition law in Chinese situation, from the law and economic theories’ perspective, from the legislation perspective, and from the judicial practice perspective, there is a long way for China to go!

Critical review of Queensland's Crime and Misconduct Commission Inquiry into abuse of children in foster care : social work's contribution to reform

This paper profiles Queensland's recent Crime and Misconduct Commission Inquiry into the abuse of children in foster care. The authors welcome the outcome as an opportunity to highlight the problems encountered by child protection jurisdictions in Australia and internationally, and they applaud some of the Inquiry's findings. However, the paper argues that the path to reform is hampered by insufficient accountability by government and management, and an inadequate challenge to the ideologies underpinning contemporary child protection policy and practice. The authors conclude with a call to value and assert social work's contribution to child protection systems so as to vastly improve outcomes for children and families.

Government community service contracts : restraining abuse of power

The use of grant contracts to deliver community services is now a significant feature of all Australian government administrations. These contracts are the primary instrument governing the provision of such services to citizens and are largely outside the usual parliamentary review mechanisms and constraints. This article examines the extent of the erosion of fundamental constitutional principles facilitated by the use of private contracts, by applying the principles used in scrutiny of delegated legislation to standard form federal and State community service contracts. It reveals extensive executive power which, if the relationship were founded in legislative instruments rather than in private contract, would have to be justified to Parliament at least and possibly not tolerated.

Victimization and Attitudes Towards Woman Abuse of Impoverished Minority Women

There has been virtually no research on the linkages between poor minority women’s attitudes toward woman abuse and their experiences of mistreatment. In this article, this relationship is explored for 144 women from three racial groups living in public housing in a Minnesota city. One unique aspect of the study is the inclusion of Hmong women, members of a group originally from several areas of Southeast Asia, and about whom little is known. Generally, while there were no differences between groups, and a few within the Black or White groups, Hmong women who agreed with male privilege were five times more likely to be abused than other Hmong women, while Hmong women who disagreed with statements approving of male aggression in certain specific situations were only one third as likely to be abused. The results suggest that while rates of abuse among minority poor women are profound, agreement with certain patriarchal norms that may validate abuse varies considerably, and may have different consequences for different ethnic groups. Further research examining potential reasons for these variations is needed if policy makers and practitioners are to adequately address these women’s experiences of abuse.

Dangerous Exits: The Abuse of Women in Rural America

Decade after decade, violence against women has gained more attention from scholars, policy makers, and the general public. Social scientists in particular have contributed significant empirical and theoretical understandings to this issue. Strikingly, scant attention has focused on the victimization of women who want to leave their hostile partners. This groundbreaking work challenges the perception that rural communities are safe havens from the brutality of urban living. Identifying hidden crimes of economic blackmail and psychological mistreatment, and the complex relationship between patriarchy and abuse, Walter S. DeKeseredy and Martin D. Schwartz propose concrete and effective solutions, giving voice to women who have often suffered in silence.

Nonlinear Enzyme Kinetics Can Lead to High Metabolic Flux Control Coefficients: Implications for the Evolution of Dominance

In a classic study, Kacser & Burns (1981, Genetics 97, 639-666) demonstrated that given certain plausible assumptions, the flux in a metabolic pathway was more or less indifferent to the activity of any of the enzymes in the pathway taken singly. It was inferred from this that the observed dominance of most wild-type alleles with respect to loss-of-function mutations did not require an adaptive, meaning selectionist, explanation. Cornish-Bowden (1987, J. theor. Biol. 125, 333-338) showed that the Kacser-Burns inference was not valid when substrate concentrations were large relative to the relevant Michaelis constants. We find that in a randomly constructed functional pathway, even when substrate levels are small, one can expect high values of control coefficients for metabolic flux in the presence of significant nonlinearities as exemplified by enzymes with Hill coefficients ranging from two to six, or by the existence of oscillatory loops. Under these conditions the flux can be quite sensitive to changes in enzyme activity as might be caused by inactivating one of the two alleles in a diploid. Therefore, the phenomenon of dominance cannot be a trivial ''default'' consequence of physiology but must be intimately linked to the manner in which metabolic networks have been moulded by natural selection.

Effect of exposure period on degree of dominance of phosphine resistance in adults of Rhyzopertha dominica (Coleoptera: Bostrychidae) and Sitophilus oryzae (Coleoptera: Curculionidae)

Degree of dominance of phosphine resistance was investigated in adults of Rhyzopertha dominica F and Sitophilus oryzae L. Efficacy of the grain fumigant phosphine depends on both concentration and exposure period, which raises the possibility that dominance levels vary with exposure period. New and published data were used to test this possibility in adults of R dominica and S oryzae fumigated for periods of up to 144 h. The concentrations required for control of homozygous resistant and susceptible strains and their F1 hybrids decreased with increasing exposure period. For both species the response lines for the homozygous resistant and susceptible strains and their F1 hybrids were parallel. Therefore, neither dominance level nor resistance factor was affected by exposure period. Resistance was incompletely recessive and the level of dominance, calculated at 50% mortality level, was -0.59 for R dominica and -0.65 for S oryzae. The resistant R dominica strain was 30.9 times more resistant than the susceptible strain, compared with 8.9 times for the resistant S oryzae strain. The results suggest that developing discriminating doses for detecting heterozygote adults of either species will be difficult.

An abuse of process - traditionally: Smith v Lucht [2014] QDC 302

In Smith v Lucht [2014] QDC 302 McGill DCJ considered whether in Queensland the concept of abuse of process was sufficiently broad as to encompass circumstances in which the resources of the court and the parties to be expended to determine the claim were out of all proportion to the interest at stake. Stay of proceedings - abuse of process - whether disproportionality between interest at stake and costs of litigating may amount to abuse of process - plaintiff with good cause of action entitled to pursue it.

The “Centre for Child Protection” of the Gregorian University/Rome. First experiences, results and reflections in setting up a global e-learning-program for the prevention of sexual abuse of minors

Resumen: El Centro para la Protección Infantil ha sido fundado en cooperación con el Instituto de Psicología de la Universidad Gregoriana (Roma, Italia), el Departamento para la Psiquiatría/Psicoterapia Infantil y Adolescente del Hospital de la Universidad de Ulm (Alemania) y la Arquidiócesis de Múnich (Alemania). Su tarea principal es la creación de un centro global de entrenamiento e-learning para profesiones de pastoral que respondan al abuso sexual de los menores, tomando en consideración asuntos multilingüísticos e interculturales. Dentro de tres años el Centro desarrollado e implementado un programa e-learning en cuatro lenguas. Ocho socios del proyecto internacional asumen un papel en el reclutamiento de participantes y en la evaluación en curso del programa. En esta fase, personas-test son incluidas en el desarrollo y la evaluación del programa, como parte de la formación (en curso) de sacerdotes y de otros coagentes de pastoral

The exposure to verbal abuse of student nurses gaining placement experience

Clinical placement experience has a key role to play in the socialisation and preparation of future members of the nursing profession. Aggression experienced by healthcare workers is currently receiving considerable attention and student nurses have been identified as a group vulnerable to experiencing workplace abuse (Little 1999). The primary aim of the study is to gain a greater understanding of the nature, severity, frequency and sources of verbal abuse experienced by student nurses in health care settings in the south east of England, using as a definition, “the use of inappropriate words… causing distress” (Department of Health 2003). A convenience sample of 156 third year student nurses of all four branches of one preregistration nursing programme in the south east of England was studied with questionnaires distributed retrospectively; 11 4 student nurses returned the questionnaires equating to a response rate of 73%. Results 46% of respondents reported experiencing verbal abuse, 39% had witnessed other students experiencing verbal abuse and 61% reported that they were aware of other students experiencing verbal abuse. Students reported experiencing threats to kill, racial abuse, sexually orientated verbal abuse and bullying while gaining placement experience. Student nurses are a high risk group for experiencing verbal abuse whilst gaining placement experience.In the literature, mental health and learningdisability settings are viewed as high risk areasfor experiencing aggression (Beech and Leather 2003); this study suggests that student nurses experience verbal abuse in a variety of settings and verbal abuse may be more prevalent on general medical and surgical wards than previously expected.