Thursday, July 06, 2006

Some post-eBay district court cases

Tillery, 2006 U.S. Dist. LEXIS 38145

The recent decision of the Supreme Court in EBay Inc. v. MercExchange, L.L.C., 126 S. Ct. 1837, 164 L. Ed. 2d 641 (2006), casts doubt on the continued validity of this principle.

Aernam v. Nenno, 2006 U.S. Dist. LEXIS 38402

Applying these [eBay] factors in this case, it is undisputed that plaintiff
faces imminent contempt proceedings before Justice Nenno if the injunctive
relief sought in the complaint is denied, carrying the potential penalties of
incarceration and/or fines. Plaintiff does not seek money damages in
this action, and there is nothing in the record to indicate that any
remedies available at law would be adequate to compensate for the harm he is
likely to suffer should he be found in contempt of the state court orders, which
are clearly in conflict with the orders of the tribal court.

Collaboration Properties, 2006 U.S. Dist. LEXIS 42465

The Supreme Court's reluctance to allow patents on abstract methods persists to the
current day. See eBay Inc. v. MercExchange, L.L.C., 126 S. Ct. 1837, 1842, 164
L. Ed. 2d 641 (2006) (Kennedy, J., concurring) (noting the "potential vagueness
and suspect validity" of business method patents).

z4 v. Microsoft, 2006 U.S. Dist. LEXIS 40762 (June 14, 2006):

When considering whether to award permanent injunctive relief to a
prevailing plaintiff in a patent infringement dispute, courts should apply the
traditional four-factor test used by courts of equity. See eBay, Inc. v.
MercExchange, LLC, 126 S. Ct. 1837, 1839, 164 L. Ed. 2d 641 (2006). The prevailing
plaintiff must demonstrate: "(1) that it has suffered an irreparable injury; (2) that
remedies available at law, such as monetary damages, are inadequate to
compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4)
that the public interest would not be disserved by a permanent injunction."

However, Microsoft only uses the infringing technology as a small component of its own software, and it is not likely that any consumer of Microsoft's Windows or Office
software purchases these products for their product activation functionality.

In the absence of a permanent injunction against Microsoft, z4 will
not suffer lost profits, the loss of brand name recognition or the loss of
market share because of Microsoft's continued sale of the infringing products.
These are the type of injuries that are often incalculable and irreparable.

Accordingly, z4 has not demonstrated that it will suffer irreparable
harm absent a permanent injunction.


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