From Patently-O:

A friend of mine who is also a senior patent counsel at a major technology corporation passed along his thoughts on the eBay appeal in an anonymous article entitled eBay v. MercExchange: Are YOUR Interests Represented?.

The article, published here on Patently-O, raises a particular issue—that of stays pending appeal. The article argues, inter alia, that the relatively short CAFC docket (~1 year) coupled with the high reversal rate indicate that injunctions should generally be stayed pending appeal.

[T]his case has reached the Supreme Court in a posture which does not adequately represent a normal company with a major product held infringed by a lower court. The typical inability to convince a lay jury that all of the patent claims found infringed are invalid [under CAFC based jury instructions of a strong presumption of patent validity including a high imposed burden of clear and convincing evidence ] will normally result in an automatic injunction promptly after trial, without any consideration of any equitable issues. That of course effectively deprives normal defendants of any appeal opportunity by immediately forcing a costly settlement to avoid being put out of business, irrespective of the normally high odds of a CAFC reversal for noninfringement if an appeal had been possible. The Federal Circuit s insistence on automatic permanent injunctions even pending appeal is the important issue for normal defendants, but that is not ever addressed in the briefs in this case, because that situation did not occur in this abnormal case.

posted by James DeLong @ 4:17 PM | Patents

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