Posts Tagged: "Ebay v. Mercexchange"

Legislation Aimed at Fixing Injunctive Relief Would Essentially Codify eBay

In 2015, China launched its 2025 Initiative listing all the technologies and industries it wants to control by 2025. So far, they have been successful in leading 37 of 44 technologies critical to economic growth and national security. The nation that dominates these technologies will determine the fate of all nations. In the past, the United States led the world in technology, but today it is China. How did this happen? This damage was caused by a series of big hits by the courts, congress and the U.S. Patent and Trademark Office (USPTO). The first big hit was eBay vs. MercExchange (eBay) in 2006. In order to obtain an injunction, a patent holder must prove that they not only have a patented product on the market, but also the ability to distribute that product. eBay let loose massive predatory infringement, killing off startups, the biggest competitive threat to Big Tech and many other industries.

Support the ‘Innovation Restoration Act of 2023’

On April 18, 2023, Senator Chris Coons (D-Del), Chairman of the Senate Subcommittee on Intellectual Property, and Senator Thom Tillis (R-NC), Ranking Member of the Subcommittee, convened a substantive bipartisan hearing to discuss how to address “Foreign Competitive Threats to American Innovation and Economic Leadership.”  Significantly, Chairman Coons asked Mark Cohen, Director and Distinguished Senior Fellow at the Berkeley Center for Law & Technology, the about the impact of the Supreme Court’s decision in eBay, Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006), which Chairman Coons observed, “made it difficult to get injunction relief in terms of strengthening the fundamental rights of patent holders.”

An Exercise in Restraint: Seeking and Combatting Injunctive Relief

Prior to the Supreme Court’s ruling in eBay v. MercExchange, when there was a finding of infringement, granting an injunction was almost automatic. See Richardson v. Suzuki Motor Co., Ltd., 868 F.2d 1226 (Fed. Cir. 1989). But eBay rejected this categorical grant of injunctions, raising the bar for obtaining such relief.  The Court’s decision in eBay sets forth the test used in United States district courts for establishing the necessity of a permanent injunction. The four eBay factors represent four high hurdles for patentees to meet for the entry of this exceptional relief and four avenues for alleged infringers to attack such requests. After looking at the contemporary grant rates for injunctive relief, we outline just some of the ways in which patentees can meet these hurdles and ways in which alleged infringers may refine their attacks.

Money, Media, Votes, and Passing H.R. 5874

All things in Washington are driven by money, media and votes. If you can deliver one or more of those things, you will get the results you want. Engaging in politics with this in mind is key to fixing the broken patent system by passing HR 5874, the Restoring American Leadership in Innovation Act (RALIA). Since no mortal can compete with Big Tech’s big bucks and their control of social media, and the media in general, the only lever remaining is delivering votes back home, or more importantly, delivering those votes to candidates who commit to supporting HR 5874.

Examining the Circuit Split on Preliminary Injunctions in False Advertising Post-eBay

In responding to the unprecedented COVID-19 challenges, companies around the world are rushing to capitalize on the current crisis by advertising the effectiveness of their products in containing the virus spread. Among these ads and messages, some may be useful in building the public’s confidence and marketing effective products to consumers, but some may mislead and deceive desperate consumers into buying treatments and products without any scientific support. As fear and anxiety proliferate during this pandemic, fraudulent or false advertisements also surge and explode. Petitioners raise false advertising claims and try to stop misleading advertisements by seeking injunctions. However, the injunction standard in the false advertising context is still the subject of debate.