Posts Tagged: "permanent injunctions"

Seeds of demise were sown when SCOTUS removed exclusivity from the patent bargain

With the next Supreme Court term beginning in a few weeks we all need to come to terms with the fact that the U.S. has a compulsory licensing system, which is truly ironic. Trade missions, trade representatives, and governmental organizations travel the world preaching about the importance of a strong intellectual property system and how that starts with strong patent rights that are not subject to the whims and fancy of compulsory licensing. America should practice what it preaches. For some time, the United States hasn’t had a property rights-based patent system. That was merely confirmed in Oil States with the Supreme Court calling patents a government franchise, but the seeds were sown over 12 years ago when the Court decided eBay and removed exclusivity from the patent bargain.

Will the Supreme Court continue to be influenced by patent reform?

Invariably, the Supreme Court takes a provision or two from pending legislation and makes it law. Will they do the same now that pro-patent reform is actually pending in Congress? After so many years of staying out in front of patent reform legislation that has weakened the U.S. patent system, dropped early stage investment by 62% and brought us a 40 year low in startups thus sending venture capital, startups and complete swaths of new technologies to China, how odd it will be if the Supreme Court doesn’t do the same now that pro-patent reform is actually pending in Congress.

Restoring the Right to Permanent Injunctions: A Patent Reform Agenda

Overrule eBay v. MercExchange and grant permanent injunctions to victorious patent owners as a matter of right. This singular change to U.S. patent laws – which is also found within the STRONGER Patent Act at Section 106 – would rectify much of the mischief caused by Congress and the Courts over the last 12 years. No single decision has so singularly tilted the balance between patent owners and technology implementers. Indeed, if you ask knowledgeable innovators and patent owners about the one decision or event they would undue if they could in order to bring the system back to some acceptable level of equilibrium and the answer will either be to overrule eBay v. MercExchange or to do away with post grant challenges at the PTAB.

Causal-nexus for a permanent injunction only requires ‘some connection’ to infringement

The district court denied a request for a permanent injunction against Metaswitch after a jury found infringement because Genband failed to establish irreparable harm. More specifically, the court found that Genband failed to establish a causal-nexus between infringement and irreparable harm, i.e. that “the patent features drive demand for the product.” The Federal Circuit remanded because this causal-nexus requirement was too stringent. The Federal Circuit explained that the court could not have confidence as to the answer to the causation question under the standard properly governing the inquiry or whether there is any independent ground for the district court finding no irreparable harm or otherwise denying an injunction.

Confused and frustrated, patent policy experts bemoan America’s absurd compulsory licensing patent system

The experts in attendance reminded us of the insanity of the compulsory licensing system that now pervades the U.S. patent marketplace, which when explained in terms of real estate is obviously absurd. A man came home from work one day to find a strange family living in his dining room. He wanted to have them evicted but was told he would have to spend five years and millions of dollars proving in court that he owned the room where the invaders had pitched their tent. A judge finally found that indeed he owned his dining room. But instead of ordering the family’s eviction she ordered the invaders to pay rent to the homeowner in an amount hypothetically determined by calculating what he and the squatters would have agreed to before his unwelcome visitors moved-in.