THE ROTTEN APPLE
The past week the news of precautionary measures granted by Colombian Civil Circuit to Telefonaktiebolaget LM Ericsson against Apple took the IP world by surprise. A peculiar, yet effective, combination of factors made possible such a bold decision by the court. Firstly, the fact that the whole process was carried out by a civil court – not precisely specialized in intellectual property matters – instead than in the Superintendency of Industry and Commerce (Colombian IP Office which also has jurisdictional powers); secondly, the very complex topic of the case: standard essential patents (SEPs) and the FRAND (fair, reasonable, and non-discriminatory) license regime. Neither the precautionary measures, nor the court order dismissing the appeal for reversal of the measures are available for consultation on the official website of the court. Nevertheless, copies of both documents have been circulating and the main precautionary measure is a cease and desist order for Apple Colombia SAS (Apple’s official distributor in the country) to not import any device or mobile phone in which the technology contained in Claim 13 of the patent No. 36031 may be used. It must be noted that no other jurisdiction granted the precautionary measures, since the meeting of the FRAND conditions should be properly resolved first. In the meantime, considerable losses are expected for Apple, since the subject matter of the precautionary measures involves 5G technology –which in Colombia is not in use yet–.
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