Posts Tagged: "Injunctions"

Why eBay v. MercExchange Should, But Won’t, Be Overruled

As anyone who follows the United States Supreme Court knows, the Court has historically been extremely fond of taking important cases with cutting edge issues, only to dodge the real issues and address some insignificant procedural or hyper-technical issue. Such disappointment is all too frequent, so Supreme Court watchers are seldom surprised when the Court passes on an opportunity to breathe clarity into otherwise unsettled waters. But what the Supreme Court did in eBay Inc. v. MercExchange LLC, 547 U.S. 388 (2006) was far more disappointing. In eBay, the Supreme Court decided to throw out longstanding and well-established Federal Circuit jurisprudence and offered little or nothing in its place. The result has been an extraordinary shift in the balance of power between patent owners and infringers.

Obtaining Injunctions Under eBay Versus at the International Trade Commission

Prior to the Supreme Court’s decision in eBay v. MercExchange, 547 US 388 (2006), it was fairly routine for a victorious patent owner who prevailed on a finding of infringement in a federal district court litigation to assume that a permanent injunction would issue to prevent ongoing infringement. Despite the STRONGER Patents Act seeking to overturn eBay, Congress at large has no desire to disturb this Supreme Court decision and any bill that contains a provision overruling eBay cannot be enacted. In light of eBay, the U.S. International Trade Commission (ITC), which has always played a large role in patent litigation and enforcement strategies because of its statutory authority to issue exclusion orders and cease and desist orders, emerged as an important forum for patent owners.

Top Secret: How to Successfully Build a Trade Secrets Case

When an employee who has left a company to work for a competitor shares a coveted trade secret, his or her former employer can experience devastating effects, including lost business and reputational damage. As a result, the former employer may want to file a lawsuit; and to stop the former employee and the competitor from using the proprietary information while the suit is pending, the employer can also seek preliminary injunctive relief. Preliminary injunctive relief requires an evidentiary showing that the former employer is suffering irreparable harm. That is, harm that cannot be remedied with money damages. The former employer must also show a likelihood that the employer will prevail on its claim against the former employee. As such, the former employer must develop preliminary evidence that the information taken is a secret that is not readily ascertainable from public sources, that the employer took reasonable precautions to protect the information from disclosure, that the former employee took the information without authority and is using the information or has disclosed the information to others. If successful, the former employee, and those acting in concert with the former employee, will be enjoined from using the former employer’s information while the litigation proceeds. As such, seeking and obtaining preliminary injunctive relief can, and is often, an important milestone in a trade secret case.

A Step Forward for the STRONGER Patents Act

The bipartisan STRONGER Patents Act of 2019 took an important step forward last week, as the Senate Judiciary Subcommittee on Intellectual Property held a hearing on the proposed legislation. Senators Tillis and Coons, the Subcommittee’s Chairman and Ranking Member, should be commended for holding the hearing and focusing attention on our patent system’s role in promoting American innovation and job creation. As several of the hearing witnesses made clear in their testimony, our patent system has been dangerously weakened in recent years through a series of judicial, legislative, and administrative changes. These changes have undermined patent rights and made it difficult for inventors to protect their innovations from infringement. Meanwhile, our foreign competitors, including China and Europe, have strengthened their patent rights. This has put us at a competitive disadvantage and helped contribute to a trend of both innovation and venture capital increasingly moving overseas. For example, the U.S. share of global venture capital fell from 66% in 2010 to 40% in 2018, while China’s share increased from 12% to 38% in the same time period. And despite more than a decade of economic growth following the Great Recession of 2007-2009, startup formation has failed to return to its pre-recession levels.

Senate Hearing on STRONGER Patents Act Highlights Sharp Split on Injunctive Relief, IPR Fixes

On the afternoon of Wednesday, September 11, the Senate Judiciary Committee’s Subcommittee on Intellectual Property convened a hearing titled Innovation in America: How Congress Can Make Our Patent System STRONGER. The hearing focused on the STRONGER Patents Act, a piece of legislation that has been reintroduced into both houses of Congress, the Senate portion of which has been co-sponsored by the Senate IP Subcommittee’s Ranking Member, Senator Chris Coons (D-DE), fellow Subcommittee members Mazie Hirono (D-HI) and Dick Durbin (D-IL), Judiciary Committee member John Kennedy (R-LA) and Senators Tom Cotton (R-AR) and Kevin Cramer (R-ND). Sources at IPWatchdog’s Patent Masters Symposium this week said that the bill still faces many obstacles to passage. However, according to Senator Coons’ Office, the bill has wide bipartisan support in the House as well. The panel for the hearing was evenly split between supporters and detractors of the proposed law, and most of the discussion focused on the injunctive relief and inter partes review (IPR) provisions of the bill.