PatentlyO (Dennis Crouch) does his usual excellent job of sorting and listing and linking to the briefs filed in eBay v. MercExchange and summarizing some of the major ones. He notes: "Because this issue is so fundamentally important to patent law, eBay v. MercExchange will likely be the most important patent case for the past decade."

Yesterday, the Solicitor General filed a motion for leave to argue as amicus and for divided argument. This is a big deal, because, while the SG supports MercExchange, technically, in fact its position on the proper legal rule is that of eBay's supporters -- that a district court has the power to weigh equitable factors in deciding whether to grant an injunction, that the Federal Circuit unfortunately forgot to articulate this standard, and that while a presumption in favor of an injunction might exist, its issuance is by no means automatic. (See the Summary of Argument at pp. 8-10 of the SG's brief.) However, the SG thinks eBay should lose this case, so the Petitioner is unlikely to be happy even if its amici supporters are ecstatic.

Crouch agrees:

[The SG's] position goes along with my own thoughts that the Supreme Court will hold that a court should weigh the pros and cons of an injunction before shutting down an infringer, but that there will still be a strong presumption that an injunction will grant — especially when the infringement is willful.

The line-up of briefs:

Party Briefs on the Merits

o EBay Brief
o MercExchange Brief

Amici Briefs Supporting MercExchange (Strong Injunctions)
o U.S. Government Brief
o Intellectual Ventures and Inventors Brief
o Law & Economics Professor's Brief
o Biotech Industry Brief
o PhRMA Brief
o Brief of GE, 3M, P&G Du Pont, and J&J
o Qualcomm Brief
o Brief of Rembrandt IP Management
o Brief of the University of California and other Research Universities
o AAU Brief
o United Inventors Brief
o ABA Brief
o Franklin Pierce Law Professors Brief

Amici Briefs Supporting Ebay (Weaker Injunctions)
o Yahoo! Brief
o Electronic Frontier Foundation Brief
o Brief of Professors Pollack & Reynolds
o Computer & Communications Industry Association (CCIA) Brief
o Brief of Intel, Microsoft, Oracle, and Micron
o Brief of the Securities Industry
o Brief of Research-In-Motion
o Nokia’s Brief
o Brief of the Bar of the City of New York
o Business Software Alliance (BSA) Brief
o Brief of Time Warner, et al.

Supporting Neither Party
o AIPLA & FCBA Joint Brief (Supporting a “general rule” of granting injunctions)
o Fifty-Two Law Professors Brief (asking for weaker injunction provision)
o Teva’s Brief (asking for weaker injunctions)
o Bar Assn. of the District of Columbia’s Brief (cautioning about meddling in a political issue)
o IBM’s Brief (equitable principles must be examined)

The final shot -- the eBay Reply Brief -- must be filed a week before the oral argument, which is scheduled for March 29.

posted by James DeLong @ 9:41 AM | Patents

Link to this Entry | Printer-Friendly | Email a Comment | Post a Comment(0)