Courtesy of Greg Aharonian's newsletter, here's some choice quotes from the patent bar on the Supreme Court's opinion in the eBay case:

To me, the more troubling aspect of the Kennedy concurring opinion is an inconsistency with basic trial procedure and respect for the judicial process. At the time a court considers and applies the "calculus under the four-factor test", the patent has been adjudicated as not valid and infringed. One does not consider an injunction for a patent held to be invalid. . . The concurring opinion suggests that the trial court may still regard the patent as having "suspect validity" after a full adjudication of this issue. . . This seems inconsistent with the basic function of the trial.

And:

Amazingly, the majority opinion failed to understand that in all but
exceptional patent cases, the four factors are already answered in favor
of the patentee. The first two are answered by definition:

(1) When is the loss of one's right to exclude ever not an irreparable injury? Whether or not one works his patent, the loss of that right will always, always, always put him in a significantly, irreparably worse position. For example, it eliminates incentive for the defendant to settle (for any more than the damages) before appeal. It also emboldens all otherpotential infringers by vastly reducing their perceived likely downside.

(2) Since the very essence of the patent is the right to exclude, when
is a reasonable royalty or lost profits ever completely adequate to
compensate for its loss? As noted under factor (1), the patentee is always, always
in a worse position without an injunction.

Likewise, the second two factors have already been answered implicitly
by Congress:

(3) Either way, an injunction or lack thereof will cause a hardship for
one side and none for the other. The size of the hardship largely depends
on how good the patentee's invention is. That's the whole incentive of the
patent system ... big invention = big reward.

(4) The public's immediate interest is ALWAYS disserved by granting an
injunction, as injunction prevents competition and the consequent
increased variety and reduced price of the goods/services at issue. On the other
hand, the public's long-term interest is ALWAYS served by granting
injunction because that is the keystone of the patent system that drives
the country's innovation.

I find the latter comment particularly apt; I find the failure of the Court's opinion to address this disturbing; and, last but not least, one can only hope that the lower courts will pick up this ball before someone runs after it into the street.

posted by Solveig Singleton @ 9:06 AM | Patents, Supreme Court

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