Further analysis of eBay v. MercExchange: the trial lawyers won
Kieff and Wagner on eBay v. MercExchange: Unfortunately, besides flagging the two outer limits -- no "general rule" in favor of injunctions nor any "broad swath of cases" exempt from them -- the court said little other than the four-factor general test for injunctions should be applied. The effect of this watershed case on innovation turns on how close the courts avoid "writing on an entirely clean slate" by adhering to the status quo.
They discuss the 1908 Continental Paper case: Even when a patentee is not looking for a deal, the infringer can still offer him one too attractive to pass up. This presumably motivated the court to reject exceptions based on a patentee's "willingness to license" or "lack of commercial activity" and to affirm the century-old Continental Bag decision that a patentee need not practice the patented invention. As the court noted: "Some patent holders, such as university researchers or self-made inventors, might reasonably prefer to license their patents, rather than undertake efforts to secure the financing necessary to bring their works to market themselves."
They conclude: In the end, who won? It may be too soon to tell. To the extent we've entered a new uncertain domain ruled by an all-things-considered analysis in each case, the trial lawyers win. To the extent the present practice is an acceptable general tendency to issue injunctions -- though short of a "general rule" -- innovation wins.
There is a reference to the patent quality issue: It would be ironic and harmful to let fears about the weakest patents prevent injunctions for those shown to be the strongest. If we think the possibility of invalid patents is so great that all seem tarnished, the culprit is the institutional problem of policing bad patents. And a direct attack on these problems is far likelier to yield gains. Why not weaken or abandon the judicial presumption of validity and publish patents soon after filing?
*****
Of Kieff, see also THE CASE FOR REGISTERING PATENTS AND THE LAW AND ECONOMICS OF PRESENT PATENT-OBTAINING RULES
They discuss the 1908 Continental Paper case: Even when a patentee is not looking for a deal, the infringer can still offer him one too attractive to pass up. This presumably motivated the court to reject exceptions based on a patentee's "willingness to license" or "lack of commercial activity" and to affirm the century-old Continental Bag decision that a patentee need not practice the patented invention. As the court noted: "Some patent holders, such as university researchers or self-made inventors, might reasonably prefer to license their patents, rather than undertake efforts to secure the financing necessary to bring their works to market themselves."
They conclude: In the end, who won? It may be too soon to tell. To the extent we've entered a new uncertain domain ruled by an all-things-considered analysis in each case, the trial lawyers win. To the extent the present practice is an acceptable general tendency to issue injunctions -- though short of a "general rule" -- innovation wins.
There is a reference to the patent quality issue: It would be ironic and harmful to let fears about the weakest patents prevent injunctions for those shown to be the strongest. If we think the possibility of invalid patents is so great that all seem tarnished, the culprit is the institutional problem of policing bad patents. And a direct attack on these problems is far likelier to yield gains. Why not weaken or abandon the judicial presumption of validity and publish patents soon after filing?
*****
Of Kieff, see also THE CASE FOR REGISTERING PATENTS AND THE LAW AND ECONOMICS OF PRESENT PATENT-OBTAINING RULES
posted by Lawrence B. Ebert at 6:21 PM
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