Friday, February 10, 2006

The CCPA revived in Mercury News article!

An article by Bruce Heiman and Paul Stimers has the line: But decisions by the U.S. Court of Customs and Patent Appeals over the last 20 years effectively require a district court to grant an injunction once there is a finding of patent infringement. There have not been many decisions of the CCPA over the last twenty years, because it was replaced by the Court of Appeals for the Federal Circuit [CAFC]. Perhaps this line is better suited for the Harvard Law Review.

Decisions by the CAFC including Gore and Richardson do not mandate an injunction, but contemplate special reasons that might militate against the grant of an injunction.

Heiman and Stimers also said:

Courts should consider the overall impact on innocent third parties, each of whom have intellectual property rights that should be considered. It is important to understand that injunctions are likely to still be issued in many cases. For example, in drug patents where the chemical compound is the patented product and there are few other issues to consider, the outcome should be clear. And trial courts also may well determine that a patent holder's rights trump even the combined rights of a large number of innocent third parties. But at least the courts, in fairness, should address this question in each case.

Although the more standard injunction inquiry contemplates the public interest, it has not considered the impact on specific third parties.

eBay's argument on public interest included the cite to Quillen's 97% Patent Grant Rate number.


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