On business method and software patents and injunctions:

This issue is now before the Supreme Court in the important case of MercExchange, LLC v. Ebay, Inc. in which Ebay adopted a bidding system that willfully infringed MercExchange's fixed-price purchasing system. . .

One question before the Supreme Court is whether it should continue to adhere to the rule in Continental Paper Bag Co. v. Eastern Paper Bag Co. that injunctions should ordinarily be issued as a matter of course . . .

Any alternative system would have undesirable effects. Its inescapable level of discretion in awarding or denying an injunction--which often rests on vague appeals to some standard of the "public interest"--would introduce a compulsory licensing system in some, perhaps all, cases, without knowing which. There is no doubt that the injunction is a powerful club to wield against a potential infringer, but it is not without risk to a patentee, even after its patent has been found both valid and infringed. The patentee who shuts down a lucrative business may destroy the business, but it will also cut off its own source of revenues. The injunction therefore operates in all cases as a double-edged sword, which is why the recent Blackberry dispute settled for less money than was commonly expected.

posted by Solveig Singleton @ 6:44 AM | Academia, Big Tent, Patents, Supreme Court

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