Thursday, 3 March 2011

LG vs Sony (PS3) - Preliminary injunction

I’ve read Mark Schweizer’s report in IPKat over the preliminary injunction obtained by LG against Sony PS3, at the district court of the Hague (once again acting as a de facto EU Community Patent Court?) and some questions came to my mind.

As Mark reports, “LG based its claim on patents (allegedly) covering the Blu-ray playback facility of the PS3”.

We don’t have much information but I belive the preliminary injunction affects a modification introduced by Sony in its product. Otherwise it would be difficult to understand how a preliminary injunction is granted against a product that has been sold for several years.

On 17 November 2006 the magazine PCWorld made especial reference to PS3’s “support for the Blue-Ray Disc format” (here). Furthermore, in the Instruction Manuals express mention is made to the Blue-Ray discs that it can read. The 2006 Instruction Manual can be found here.

Preliminary injunctions are traditionally granted when there is a threat of an irreparable damage or injury. I don’t think this would be the case of a product sold for more than three years. If LG failed to request a preliminary injunction in 2006, which irreparable damage or injury can now be claimed?

I’m definitely missing something. Does the injunction affect a modification introduced in the last model of the PS3? We will see.

3 comments:

Norman said...

You say “Preliminary injunctions are traditionally granted when there is a threat of an irreparable damage or injury.” Is that true in the law applied by the District Court of the Hague? I’m afraid that I know very little about European law (outside the EPO). I do know that in English law and related systems (e.g. US and Canada) the “rule” requiring threat of irreparable injury, or, more precisely, inadequacy of remedies at law, for the grant of an interlocutory injunction stems from the days when equity and law were administered in separate courts. The reason for the requirement was to reduce the workload in the courts of equity and to prevent forum shopping between law and equity. This historical justification is no longer relevant, and while Cyanamid did reiterate the rule, my understanding is that it is usually subordinated to the balance of convenience test: see e.g. Series 5 Software Ltd v Clarke [1996] 1 All ER 853 (Ch.), Laddie J. The same is true in most Canadian jurisdictions. Similarly, in the US the irreparable injury rule plays little role: see Douglas Laycock, The Death of the Irreparable Injury Rule (OUP 1991). Given that history and practice, I would find it surprising and very interesting if civilian systems had developed a similar rule.

Rob Harrison said...

I don't think it needs to be a new modification introduced by Sony. The action is based on the EU Border Seizure Measures under EU Council Regulation No 1383/2003. This does not require an "emergency injunction" but is a provisional measure to enable the goods to be held by customs whilst the IP rights holder has the opportunity to apply for a permanent court order.

Anonymous said...

I think LG filed for the petition upon recently discovering that there exists a patent infringement, otherwise the Civil Court of Hague would have questioned why such action was not commenced at the earliest possible opportunity. In short, only recently has there been a discovery made by LG that merits a petition for a writ of preliminary injunction as well as a patent suit, which has need duly granted by the Court.

There has been much speculation amongst "tech heads" around the Net that the recent hacking of the PS3 has revealed certain "secrets" within the PS3's software. Perhaps,
LG was tipped off and used such information as its basis for its suit against Sony. This is just speculation, though.