Monday, March 20, 2006

Forbes: Federal Circuit rode roughshod over the will of the people

In the text below, Forbes places the beginning of the Federal Circuit's injunction standard at 1989, obliquely meaning Forbes is talking about Richardson v. Suzuki Motor Co., 868 F.2d 1226 (Fed. Cir. 1989), rather than either the later eBay case or the earlier Gore case. Forbes also does not mention that the Federal Circuit injunction standard is not absolute but does talk about the Federal Circuit riding "roughshod over the will of the people." Great line. Further, unlike Michael Crichton, Forbes is not worked up about the Metabolite case.

from Forbes:

Since 1989, the Federal Circuit, which is based in Washington and has a monopoly on all appeals of patent cases, has, as a matter of course, handed down injunctions in cases of infringement. The court views patents more or less as real estate, as opposed to contracts, and thus grants patent holders a property owner's "right to exclude." Just as the owner of a field that is lying fallow isn't forced to rent it out to farmers, a patent holder should not be forced to license his patent, the court's thinking goes.


But the Supreme Court is probably concerned less about patent trolls getting rich off tech giants like Yahoo! and Microsoft [IPBiz note: the "troll" in question is presumably Eolas, a Bayh-Dole company] and more about whether the standard of automatic injunction holds up under the law. And here, the Federal Circuit appears to have ridden roughshod over the will of the people: The law states plainly that the courts "may," not "shall," impose injunction "in accordance with the principles of equity"--factors that include harm done to the patent owner or the public interest.

***Forbes is less concerned about the patent challenger position in the Metabolite case-->

Many fear that the court could end up disqualifying an entire class of patents, throwing the patent system into turmoil.

"There's an enormous sector of the biotech industry that's built upon exactly these types of correlations," says Rosenkranz.


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