Irreparable Injury: I have written about this before, but I am still struggling with a basic question from eBay v. MercExchange: Is there any distinction between the first two elements of eBay’s test for permanent injunctive relief [Irreparable injury vs. the inadequacy of available remedies at law]? Ordinarily, the first element of irreparable injury is defined as a substantial injury that cannot be fully compensated by available remedies at law (such as money damages). The ordinary test for preliminary injunctive relief collapses these and only looks at irreparable injury.
Future Harms?: Second, what should we make the eBay’s use of the present perfect tense in the irreparable injury requirement: “A plaintiff must demonstrate: (1) that it has suffered an irreparable injury.” I guess that this makes sense if it is an indication that the irreparable harm must be an ongoing harm rather than a merely future harm?
Patent Litigation Data: Professor Colleen Chien’s new article uses the newly taboo troll label in its title. I report on the article here because of her data-derived conclusion that it would be improper to “blame non-practicing entities (“NPEs”) for a majority of the problems with the patent system.” In fact “public and large private companies” have initiated the largest share of patent litigation in the past 8 years. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1396319 .
History: Professor Adam Mossoff is posting this week at the Volokh Conspiracy on his new article “A Stitch in Time: The Rise and Fall of the Sewing Machine Patent Thicket.” The story is 150 years old, but it amazingly shows that today’s arguments on patent reform are nothing more than rehash http://volokh.com/posts/1240974253.shtml .