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Seizure of Playstation 3 granted and lifted again

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Seizure of Playstation 3 granted and lifted again

At the request of LG Electronics, a court in the Netherlands has granted an order to seize all Sony Playstations 3 (PS3) in the Netherlands, because they contain a Blu-Ray player covered by LG patents.

The order was given ex-parte, without first hearing Sony. In subsequent inter-parte proceedings, another court lifted the seizure.

The order was part of worldwide battle between Sony and LG, wherein Sony had requested the ITC (US international trade commission) to block imports of LG products into the US.

The court recognized that, as a participant in Blu-Ray standard setting, LG Electronics was bound to license the patents under FRAND (Fair And Reasonable Non-Discriminatory) conditions. However, since Sony did not yet have such a licence, LG theoretically has the right to demand delivery of infringing Playstations.

Formally, LG requested a preservative seizure to protect the possibility of enforcement of a future court order to deliver the Playstations. Such requests to protect future enforcement are not unique to patent law. Dutch case law for such requests is that the court has virtually no discretion to refuse the request, but the resulting seizures are lifted equally easily if the accused provides security.

Unusually, as part of the decision to grant the request, the court included an excerpt from an e-mail from LG’s attorney to the judge, which insisted on LG’s right to choose whatever measure it wanted. Possibly in response to qualms from the judge about the extremity of the requested measure, LG pointed out that the court has no discretion to dispute LG’s choice of the measure, nor the right to make presumptions about Sony’s response.

Sony’s response was that it immediately started inter-parte proceedings to lift the seizure before another court, which specializes in patents. This court lifted the seizure as well as a parallel customs seizure. Moreover, the court enjoined LG from attempting any new "surprise" seizures.

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