Posts Tagged: "injunction"

Unlike other jurisdictions, injunctions in Brazil are no equitable remedy. There is no discretionary power of the court to decide whether to grant a permanent injunction upon the finding of infringement at the end of the proceedings. Injunctive relief is the primary remedy, and it can only be substituted by financial damages at the election of the plaintiff. Preliminary injunctions, on the other hand, are subjected to the discretion of the courts—and must pass a test of balance of hardships.

On March 4, the U.S. Court of Appeals for the Eighth Circuit issued a ruling in Tumey v. Mycroft AI, Inc. in which the appellate court overturned the Western District of Missouri’s grant of injunctive relief to Tumey, a patent attorney representing a plaintiff asserting patent claims against Mycroft. The Eighth Circuit found that Tumey had not met the requisite standard of proof to show that Mycroft had engaged in cyber attacks and harassing phone calls targeting Tumey and his family to support injunctive relief. The appellate court also remanded the case with instructions to reassign the case to a different district court judge.

On May 5, the U.S. Court of Appeals for the Federal Circuit (CAFC) affirmed the decision of the District Court for the Central District of California to vacate a judgment and injunction for Zinus, Inc., holding the district court did not abuse its discretion. The court concluded: “Here, Lawrie, Zinus’s president and expert witness, misrepresented his knowledge of highly material prior art. The district court properly declined to condone such conduct.”

In withdrawing the 2013 statement, the new 2019 guidance by the DOJ, NIST and the USPTO states the obvious, i.e. that there is no difference in the law between F/RAND assured standard essential patents and all other patents. While some would have perhaps liked to break the unitarity approach of the patent system so as to weaken remedies against the infringement of essential patents, a legal system that would apply a different standard to standard essential patents as opposed to other patents would violate U.S. trade obligations.

At a time when most policymakers rightly argue that China and other countries need to do more to clamp down on intellectual property infringement, overturning the four-factor eBay test would impose new hurdles and increase the PAE problem that Congress and the Supreme Court have fought to address over that last two decades. The risk that an implementer engages in “efficient infringement” has made the ITC an increasingly attractive forum, for at least some patent owners and notably not PAEs. ITC exclusion orders and cease and desist orders are the last vestige of the exclusivity promised to the right patent owners at the time they are granted a patent. Compared to proposed sections of the STRONGER Patents Act, the ITC strikes a balance between offering at least some patent owners the ability to prevent infringers from engaging in the never-ending game of “efficient infringement” while frustrating PAEs attempts to abuse the exclusionary remedies offered.  Congressional action should be reserved for a time when there is clear evidence that the eBay decision is harming U.S. businesses and those U.S. businesses are unable to obtain the relief they need at the ITC. At this time, there is no such evidence.

Earlier this afternoon, the United States Patent and Trademark Office (USPTO, National Institute of Standards and Technology (NIST) and the U.S. Department of Justice, Antitrust Division (DOJ), issued a Joint Policy Statement on Remedies for Standards-Essential Patents Subject to Voluntary F/RAND Commitments (“2019 Joint Policy Statement”). This Joint Policy Statement explains that “[c]onsistent with the prevailing law… injunctive relief, reasonable…

As I noted in part one of my talk at the IPWatchdog Patent Masters Symposium, the validity statistics for SEPs do not look very good at first glance. Thus, according to a 2017 PricewaterhouseCoopers study, plaintiffs in U.S. courts (ignoring patent type) have on average a 33% chance of success—only a 27% chance in the case of telecommunications patents. This chance of success is probably overstated for Standard Essential Patents (SEPs), based on the easy availability of prior art. Indeed, according to RPX’s 2014 study, in the United States, SEPs are likely to be less than half as successful as non-SEPs.In my talk, I pointed to the high invalidation rates in Europe to buttress my point that, at first glance, SEPs seem particularly vulnerable to validity challenges. Thus, in Germany, a supposed nirvana for patent assertion, the authors of the study “Patent Paper Tigers” reviewed the case law of the German Federal Patent Court and the German Federal Court of Justice in nullity matters in the period from 2010 to 2013 and found that: The nullification rate of all Senates of the German Federal Patent Court is 79.08% in total; and the nullification rate at the German Federal Patent Court regarding Software and Telecom patents which are (currently) of particular relevance from an economic point of view is 88.11%. Returning to the point made in the first part of my talk, having noted that most SEP nullification comes from obviousness, and not novelty, there should be no public interest exception to my argument that: unprovoked—that is, without first having made a FRAND offer or counteroffer—serial nullification of SEPs is contrary to the duty to negotiate in good faith and should remove a party’s defense against an injunction to SEPs.

Now, there is a flaw in this theory, and that is that, in the past few years, third parties have emerged that will—for their members or other contracted entities—kill patents.

How the likelihood of success on the merits should (or should not) be determined and the four factors balanced in a patent infringement case, are areas in which there has been significant disagreement among the judges of the Federal Circuit… Whether or not to grant the extraordinary relief of preliminary injunction to a patentee is a matter largely within the discretion of the trial court. This discretion is to be exercised in consistence with traditional principles of equity, grounded on well-articulated principles, and based on long-held precedents.  Grant or denial of a preliminary injunction by a trial court may be overturned only upon a showing of abuse of discretion by the trial court.  Failing to consider the totality of the preliminary injunction factors during review can lead to an outcome inconsistent with the requirements of equity.

On December 10, 2018, a Chinese court granted Qualcomm an injunction against Apple that stops sales and imports of most iPhones in China.  On December 12, Apple announced that as a result of the Chinese injunction, “early next week we will deliver a software update for iPhone users in China addressing the minor functionality of the two patents at issue in the…

The order granted post-trial motions filed by Fitness Anywhere both for enhanced damages on the patent infringement findings as well as a permanent injunction against WOSS. Although it wasn’t likely that Fitness Anywhere would recoup the total enhanced patent damages of more than $11 million dollars from WOSS, having recently declared bankruptcy, Villeneuve noted that this decision set an important precedent for the company. Such a ruling was very important to TRX, which has lost sales and has had to layoff employees in California because of the actions of infringing parties. Villeneuve said that the single most important factor leading to the grant of permanent injunction was WOSS’ sale of infringing products after the jury verdict.

The Federal Circuit issued a nonprecedential decision in Indivior Inc. v. Dr. Reddy’s Laboratories, S.A., which vacated a preliminary injunction handed out by the District of New Jersey in a Hatch-Waxman patent infringement case brought by British pharmaceutical firm Indivior. The Federal Circuit panel majority concluded that the district court had abused its discretion in granting the injunction. The majority found that the ‘305 patent’s specification disparaged, and therefore disclaimed, the method of drying the films with the use of conventional methods which only dry the top of the film. Judge Pauline Newman authored a dissenting opinion in which she explained she would have found the district court’s preliminary injunction grant sustained on appeal. According to Judge Newman, the majority’s decision imported the drying limitation from the ‘514 patent claims into the ‘305 patent claims despite the fact that the ‘305 patent was amended specifically to remove this limitation.

U.S. District Judge Louis Stanton recently issued an opinion granting an injunction requested by New York City’s Museum of Modern Art (MoMA). The injunction prevents the operator of an art gallery and café located in close proximity to a MoMA Design Store in New York’s SoHo neighborhood from using a pair of marks that infringe upon MoMA’s own marks. The marks in question in this case are ‘MOMA’ and ‘MOMACHA,’ both of which were filed by MOMACHA, the SoHo café that began operating in April of this year.

Congressman Dana Rohrabacher (R-CA) has introduced H.R. 6557, the Inventor Protection Act, into the House of Representatives. This bill is the latest proposed piece of legislation to help undo some of the more damaging effects of recent federal government actions on patent law which have negatively impacted the ability of patent owners to enforce their patent rights against infringers.

In recent weeks, the U.S. romance publishing industry has been roiling over a trademark issue which has been less-than-affectionately referred to as Cockygate. According to various news reports, romance writer Faleena Hopkins has been asserting a trademark she registered with the U.S. Patent and Trademark Office to prevent the use of the word “Cocky” in the titles of adult romance novels which have been published by other writers. This trademark policing campaign has sparked public outcry and has prompted action from industry organizations like the Romance Writers of America (RWA), which has consulted with an intellectual property lawyer to seek advice regarding the issue.