Posts Tagged: "Injunctions"

How the Supreme Court legislated patent reform

Over the last ten years, one bad patent reform bill after another has been introduced and then pushed by a fantastic lobbying and public relations effort that has dumped hundreds of millions of dollars on Washington DC. eBay v. MercExchange is not the only legislation enacted by the courts in their effort to avoid Congressional meddling with their turf. Legislation was introduced related to damages, willful infringement, inequitable conduct and obviousness, all of which were enacted in whole or in part by the courts, presumably to avoid passage of the legislation in Congress.

Institutional Challenges to a Reliable Patent Regime for Inventors

What we can, and should, address are institutional challenges. Regrettably, our institutional approach to patents has only further challenged small business and diminished innovation. Those challenges come from changes to our patent law in the America Invents Act (AIA), and precedent that has compromised the exclusive nature of the patent right (eBay v. MercExchange), and rewritten the law of patent eligible subject matter (Alice, Mayo and Myriad). Perhaps most significantly, pending legislation (S. 1137 and H.R. 9), if enacted, will further curtail the patentee’s ability to enjoy the rights granted and to seek just reward for infringement. On top of all this is profound uncertainty as the US Patent and Trademark Office (PTO) struggles to keep up with these changes.

CES Seizure order against alleged patent infringers issued by the Las Vegas federal district court

While we tend to think of Las Vegas’ tourism-based economy as built on gambling, trade shows also bring hundreds of thousands of visitors to the city each year. Thus, the issue of effective enforcement of the patent laws at these trade shows becomes entwined with the health of the city’s economy. Against this backdrop, the Las Vegas bench of the U.S. District Court for Nevada has developed a muscular set of equitable remedies for U.S. patent holders who complain to the court of patent infringement by a trade show exhibitor, remedies that the court can and does deploy with sufficient speed to be effective within the narrow timeframe of a trade show.

The Patent Scrooges: The rise and potential fall of the efficient infringers

So it now looks like this: if you are a patent owner and feel that your rights have been encroached upon, you now have to assume there will be a challenge to their validity by a potential licensee through an Inter Partes Review (IPR). If you are one of the lucky few (~25%) who survive such a challenge with at least one valid patent claim, you then have to expect an appeal. Assuming you win that appeal, then the real court battle starts in earnest and you’ll have to face what has now become a $3-5M ordeal in legal fees to get through a full trial on the merits and the routinely filed appeal should you beat all odds and win. Treble damages for willful infringement have been rarer than a dodo bird sighting and even winning does not mean you will collect your money any time soon, as the Apple-Samsung saga has recently shown.

The theory of patents and why strong patents benefit consumers

Consumers benefit most when patents are strongest and act to block actors. When competitors are blocked that means they cannot simply copy and flood the market with knock-offs or products that at their core are essentially identical. Competitors that are blocked by strong patents have a choice. Either they ignore the patent rights and infringe, which is sometimes the choice made particularly when a small company or individual owns the patent and it is believed they can be bullied. Alternatively, competitors must figure out how to design around the patents in place and find new, creative ways to do what they want to do. When patents are designed around that is when paradigm shifting innovation can and does happen. Unfortunately, thanks to the Supreme Court and Congress we have a patent system that today incentivizes copycats and bullying of innovators.

No permanent injunction threat leads to refusal to deal with patent owners

Simply stated, Lemley is wrong and his suggestion that eBay v. MercExhange is at all positive, let alone the best development, strikes me as utterly ridiculous. The true mischief of the eBay decision isn’t that patent owners can’t obtain a permanent injunction, but rather that the Supreme Court has taken the threat of a permanent injunction off the table. This means that infringers have no incentive to deal. If infringers had to fear the possibility of a permanent injunction they would be forced to enter into meaningful arms length negotiations with patent owners. Instead, now infringers can merely say “sue me,” which is exactly what they do.

The ITC and Excessive Patent Damages Myths

Professor Paul Janicke of the University of Houston Law School conducted a study of all damage verdicts in patent infringement cases between 2005 and 2007. He found no pattern of “runaway jury awards.” In fact, many of the biggest damage awards of that time, including the $1.5 billion award Lucent won from Microsoft, were set aside or greatly reduced by the judges. Even Apple’s $1 billion 2012 patent verdict against Samsung was recently slashed 43 percent. Why, then, are claims of a “broken” patent system rife with “excessive damage” awards so widely believed?

Patent Erosion 2013: What Would the Founding Fathers Think?

As the end of 2013 approaches and I look back on what has transpired I am saddened to see that through the year patent rights have continued to erode. Make no mistake about it, at every turn patent rights are eroding. You might think that there has been some collective, open-air discussion about whether this is a good idea. Nope! It seems government you get is the government you can afford, and those who have the ear of decision-makers on Capitol Hill are the extraordinarily well funding big tech companies that want to weaken patent rights or do away with them altogether. Indeed, there has been scant consideration paid to the effect of weakening patent rights. The erosion of patent rights is exceptionally alarming given the fact that the Founding Fathers thought it was self evident that a strong patent system was essential for America. The Founders believed the importance of patent rights to be so self evident that little debate was had on the topic. How the pendulum has swung!

Patent News and Notes

1. Reed Tech takes over USPTO Contract from Google. 2. Pharma Patent Settlements Saved $25.5 Billion for US Health System. 3. Coffee Analysis Smart Phone App for that Perfect Brew. 4.FDA Approves Brain Wave Test to Assess ADHD in Children. 5. CAFC Copaxone® Patent Ruling Allows May 2014 Generic Launch. 6. A Permanent Injunction in a Patent Infringement Case! 7. Post-Grant Proceedings Treatise Publishes.

Patent Litigation: How to Practice Post-TiVo

In TiVo v. Echostar, Echostar lost on infringement of TiVo’s patented DVR functionality. Judge Folsom issued an injunction and ordered that Echostar stop offering the service and disable all storage to and playback from the hard disk. Unfortunately for Echostar, they did not appeal the wording of the injunction and took no action against the disablement provision. Instead they designed around it by downloading new code to get the set-top box to operate in a different way, in what appeared to be a pretty clean design-around. TiVo filed a contempt motion. Echostar was sanctioned on the grounds that there were not “colorable differences” and their design-around infringed. The dissent argued that not only were there colorable differences but moreover the differences established non-infringement. After two years of back-and-forth and one too many trips to Judge Folsom, the original 70 million that Echostar had to pay for the initial infringement rose to 300 million because of Echostar doing what they thought would get them out of infringing.

Post-eBay Economic Standards for Assessing Irreparable Harm

One of the factors considers the presence of irreparable injury, which is harm not quantifiable or remediable as money damages. For the factor to be satisfied – for an injunction to issue – it must be determined that damages associated with ongoing infringement are economically incalculable. This factor, unpopular as it may be among some observers, has regularly been pointed to by Courts as conclusive in their decisions to issue or deny injunctions. Yet the factor is often analyzed only superficially, and even unpredictably.

No Permanent Injunction for Apple in Samsung Patent Battle

Yesterday, the Judge Koh of the United States District Court for the Federal Circuit denied Apple’s request for a permanent injunction in their ongoing patent war over smartphones with Samsung. The denial of the injunction will allow Samsung to continue to sell phones found to infringe Apple’s patents. How can that make sense to anyone? The patentee, who has already won, must establish entitlement to an order to exclude ongoing and future infringement under a four-factor test that balances equities? What good is a patent? Why did the Patent Office even bother reviewing the patent in the first place then? Why do we pretend that there is an exclusive right in the first place? And the most ignorant elements of the anti-patent community have the audacity to refer to a patent as a monopoly? Give me a break!

Chief Judge Rader Takes on Lobbying White House and SCOTUS

The discussion was lively, perhaps even explosive. You could nearly see sparks fly when Chief Judge Rader continued to pepper Seth Waxman with question after question about his opinion on the propriety of parties lobbying the White House in order to obtain a favorable amici brief from the Department of Justice. Rader zeroed in on the slippery slope and obviously is not pleased with the mixing of law and politics, saying: “this is a cause for concern… Politics and law have a divide.” It is indeed troubling that the White House under both President Bush and President Obama have allowed lobbying by parties who seek a favorable DOJ amici brief. Interpretations of the law shouldn’t be for sale, or appear to be for sale to the largest donors.

Happy 5th Anniversary: The Impact of eBay v. MercExchange

Since the Supreme Court’s decision in eBay v. MercExchange there have been 131 cases where a permanent injunction has issued and 43 cases where a permanent injunction has been denied. Some have tried to pass this off as not much of a departure from the practice prior to the Supreme Court’s decision. Such a viewpoint is, however, not correct. Prior to the Supreme Court’s decision it was virtually unheard of for a district court to deny a victorious plaintiff a permanent injunction in patent infringement case. So the Supreme Court’s decision in eBay v. MercExchange has been one that has significantly altered the patent litigation landscape and, therefore, is easily one of the most important Supreme Court patent cases in recent memory.

A Patent Legislative Agenda, What Congress Should Do in 2011

Realistically, I understand full well that it is unlikely that Congress will bother themselves with reform efforts that are sensible, at least at the moment. It is also unlikely that innovators will be adequately represented in any reform efforts once they do arise. It seems that the power structure in Washington, D.C. believes that the term “innovator” and “big business” are synonymous, which surely they are not. It is also unlikely the Senate will move beyond the legislation Senator Leahy wants so badly but can’t seem to move. Thus, if we really want sensible reform that actually raises up the Patent Office and guarantees the value of patents for innovators we need to be ever vigilant.