Post EBay Injunctive Relief

IP Today has published an interesting report on permanent injunction decisions since the Supreme Court’s 2006 decision in eBay v. MercExchange. The authors found 67 district court injunction decisions. 48 (72%) granted relief; 19 (28%) denied relief. The article highlights a number of cases where injunctive relief was denied even though the parties were market competitors. Unfortunately, the article does not indicate whether the parties were actually competing in the market influenced by the patent. (The article indicates that IMX v. LendingTree involves competitors.)

Ernest Grumbles, Rachel Hughey, and Susan Perera, The Three Year Anniversary of eBay v. MercExchange: A Statistical Analysis of Permanent Injunctions, Intellectual Property Today, November 2009 (behind a firewall).

76 thoughts on “Post EBay Injunctive Relief

  1. “To not published the unethical would be to punish the ethical.”

    The “counter-argument” to this is that your definition of “punish” is over-broad. In the extreme.

    “Regarding software patents, I think most practitioners believe that software is patentable subject matter. ”

    Ergo, it is not unethical to practice thus. I can accept that.

    Just because something isn’t unethical doesn’t mean that most practicioners aren’t wrong though. Take KSR for example. I’d go out on a limb to say that “most” practicioners thought that the law was TSM. Then again, “most” practicioners display a wanton disregard for the actual statute when such an action benefits them/their client (and thus them indirectly).

  2. Broje, the more I think of it the more I think there should be a bright line per se rule that a willful infringer is not entitled to a compulsory license. Granting willful infringers compulsory licenses is per se against the public interest.

  3. 6, your argument reminds me of the many discussions I had with defenders of baseball steroid users. They would argue that even though the users knew it was cheating, their records should stand on blemished because it was not against rules. The counterargument is this: even during a steroid era, not everyone cheated. To not published the unethical would be to punish the ethical.

    Regarding software patents, I think most practitioners believe that software is patentable subject matter.

    Re: business method patents, I must draw the opposite conclusion given the kind of briefs filed against Bilski in the pending appeal at the Supreme Court.

    Still, it is the ethical obligation of attorney to represent his or her client zealously, but within the law. Therefore, if there is a viable legal argument for the patentability of business methods, it is not unethical for a patent attorney to make that argument.

  4. “Do I have the mantra right?”

    If we are talking about a certain brand of so called “software patents” then I believe you do sir.

    I probably wouldn’t personally go so far as to say that their behavior is necessarily unethical. One must be aware of the wrongdoing in order to be acting unethically it seems to me. If one’s world-view, intelligence level, or misleading information literally prevents you from understanding what you are doing is wrong, then “unethical” might not be the appropriate choice of words. In the alternative, another way for your actions to be unethical would be if your actions are not widely accepted as acceptable practice. Then again, I could be wrong on whether or not it is unethical behavior, I’m certainly no expert in that arena :p iirc though a specific given society defines what ethical behavior within itself is, as opposed to reality defining what is ethical behavior. It’s been so long since I had that class that touched on the subject I really can’t remember much though.

    But why do you bring up that specific class of inventions Ned? Isn’t the question in the thread relating to patents in general? Patents in general aren’t worthless, even without the reliability of injunction.

  5. Broje, actually, unless willful infringement is a factor in awarding the injunction, and it is not one of the listed considerations, the willful infringer has every incentive to willfully infringe if there is only a remote possibility of an injunction. Without the reliability of injunction, patents are nigh on worthless.

    But, the counter from the likes of big (we invent the technology, you don’t) software and their allies 6 and Mooney, is that the patents are worthless — simple tricks of unethical patent attorneys, pursued in an all but illegal shakedown schemes by trolls to mulct legitimate businesses and to raise prices to the rest of us like an unfair tax on progress.

    Do I have the mantra right?

  6. NEd said:

    ********broje and Paul, again read the cases. When the court denies an injunction, it provides for a compulsory license at a court set rate. Often now the defendant will move for a compulsory license.

    It would be nonsensical for a court to deny an injunction and not provide for a compulsory license, would it not?********

    So what you are saying is, there are no increased damages for wilfull infringement. Is that right?

    If so, that helps point up why the threat of an injunction is needed to force the infringer to take the competing product off the market and replace it with one that does not infringe the patent.

    10 years ago, compulsory licenses only happened in a few countries in Europe and those policies were widely regarded with suspicion here in the US. It amazes me that we have slipped so far in such a short period of time.

    As a result, the incentive to perform R&D is gone. There is no need to think 15 years ahead. A more passive, reactive approach is becoming the norm. Personally, I think that is a bad thing.

    In other words, the enormously decreased incentive to develop patent portfolios is leading companies to choose to save money up front by not performing R&D, and not filing patents on products that are 15 years ahead of their time. Instead, they are filing patents on innovations that are actually going into production, which happens much later, and usually only as a result of merging of technologies and markets. That is what I see going on right now.

  7. Hard for an old dog to learn new tricks.

    Here’s bold and italic.

    I think I got the hang of it.

  8. “Dudes,

    What’s with all the boldings and other hyperbolics?”

    It’s called JAOI didn’t close his bold tag.

  9. Lionel,

    Re:
    “To answer your specific question JAOI, i think NYC is probably a hostile venue, so yes the terrorists should probably be tried elsewhere to obtain a fair trial. Is that what you were looking for? The fact that I believe most of these guys haven’t confesses so much as taken credit, mitigates my concern on that front.”

    I have had it with you —
    you are no longer my friend you son of a witch.
    You Just do not get it!

    What would you do with those who have
    (i)“taken credit” for the cruelest attack
    on our nation, in the name of God no less, and
    (ii) others who sympathize with the phucking terrorists?

    You may consider yourself a “real American,”
    but, with all due disrespect,
    I consider you a good-for-nothing bum.

    O’ Lord, hear my prayer.
    link to youtube.com

    God Bless America!
    God Bless America!
    God Bless America!

  10. Posted by: Nathanael Nerode | Nov 20, 2009 at 02:42 PM

    “Once upon a time, a long long time ago, patents were respectable in the United States.

    Then Congress and the courts opened the floodgates with first “process patents”, then “business method patents” and “software patents”, by abolishing the working model requirement, by changing the court rules to favor the patentholder whether right or wrong, by allowing people trying to get patents multiple attempts and giving the patent examiners strong disincentives to reject any patent, and so forth.

    Eventually people stopped respecting patents. Because why should you respect something which isn’t respectable any more?

    People used to respect bankers, too. No kid. It’s not the people that changed, it’s the bankers.”

    Man, have you got history backwards.

  11. To answer your specific question JAOI, i think NYC is probably a hostile venue, so yes the terrorists should probably be tried elsewhere to obtain a fair trial. Is that what you were looking for? The fact that I believe most of these guys haven’t confesses so much as taken credit, mitigates my concern on that front.

  12. Hi Gobhicks,

    Yup, yup – started early.

    I too struggle with excesses.

    Just too many windmills!, but I like it that way…

  13. Hey JAOI

    Don’t get me wrong, by the way. I’ve been around here long enough, in various guises, to respect your viewpoint, and to respect you yourself as one of the most likely to be sincere entities in these here parts. Not to say that I don’t struggle with your excesses of purely held patriotism. The world is full of good people with noble aims and imperfect implementation. God knows, I’m one of them.

    The road to hell is paved with good intentions.

    Who’d be a politican in times like these?

    Qui bueno?

    Hope

  14. “giving the patent examiners strong disincentives to reject any patent”

    now there’s a clue to someone completely in touch with reality.

    /sarcasm off

  15. Once upon a time, a long long time ago, patents were respectable in the United States.

    Then Congress and the courts opened the floodgates with first “process patents”, then “business method patents” and “software patents”, by abolishing the working model requirement, by changing the court rules to favor the patentholder whether right or wrong, by allowing people trying to get patents multiple attempts and giving the patent examiners strong disincentives to reject any patent, and so forth.

    Eventually people stopped respecting patents. Because why should you respect something which isn’t respectable any more?

    People used to respect bankers, too. No kid. It’s not the people that changed, it’s the bankers.

  16. Starting the weekend early JAOI?
    Freedom of speech means never having to say you’re sorry.
    Freedom is a slippery notion.
    Freedom from…
    Freedom to…
    Freedom comes
    Freedom goes
    Keep on rockin’ in the free world

    PS
    There’s a crack
    There’s a crack
    In everything
    That’s how the light gets in

    Peace

  17. Dear Lionel,

    Above I posted this question to you, twice, for emphasis:
    —————————-
    (Off subject question — what do you think about Obama trying the terrorists juxtaposed where they struck?)
    * * * * *

    * * * * *
    Off subject question — what do you think about Obama trying the terrorists juxtaposed where they struck?
    Posted by: Just an ordinary inventor(TM) | Nov 18, 2009 at 12:44 PM
    —————————-
    And you posted to me:
    “I don’t care where Obama tries the alleged terrorists”

    You may not care where Obama tries the phucking terrorists, my friend, but the large majority of real Americans do care, and they deeply care.

    So what does that make you?

    And who is the fool now?

    “Never wrestle with a pig: you both get dirty – and the pig likes it.”

    I’ll bet you art taking this dialogue to heart, and liking it a lot, right?

  18. “If you can not or do not distinguish between
    a military tribunal in a military facility and
    a court of law”

    Way to ignore what I actually wrote JAOI. My fault – never argue with a fool, he only drags you down to his level and beats you with experience.

  19. broje and Paul, again read the cases. When the court denies an injunction, it provides for a compulsory license at a court set rate. Often now the defendant will move for a compulsory license.

    It would be nonsensical for a court to deny an injunction and not provide for a compulsory license, would it not?

  20. Dear Lionel,

    Re:
    “I have no problem with a tribunal or a court of law.”

    If you can not or do not distinguish between
    a military tribunal in a military facility and
    a court of law in lower Manhattan
    near where the twin towers once stood,
    well my friend, with all due respect,
    you are clueless & hopeless.

  21. BTW,

    One of the many problems with Obama is his continuance of too many Bush policies.

    SORRY to everyone else for turning this topic into a political discussion. I will stop now.

  22. First “Alleged” terrorists as the majority of people who were held at Guantanamo and most likely our other SECRET PRISONS were not involved and many have been set free after spending years in prison.

    Granted, all the people we are actually trying may in fact be bragging about their acts. Should make concviction easier, shouldn’t it?

    And, oh yeah, it is also indisputed that we have tortured innocent people to death (See Taxi to the Darkside, if you have not)

    Second, every alleged terrorist deserves the full rights granted by our Constitution. As long as a military tribunal adheres to the Constitution, the defendants are assigned or able to hire legal representation, the rules of evidence are unchanged from criminal court, and the transcripts are subsequently made public, I have no problem with a tribunal or a court of law.

    Again, anything less is UnAmerican.

  23. “I still believe the Supreme Court got it correct in ebay, I just expected and believed that the vast majority of cases would and should result in injunctions.”

    Lionel,

    I’ve got no problem with Justice Thomas’ opinion for the Court in eBay. I’m still trying to figure out what Chief Justice Robert’s concurring opinion is trying to say or do. And Justice Kennedy’s concurring opinion, incluidng his statement about the need to scrutinize more carefully “business method” patents, makes me positively ill.

  24. Ned Heller for one reason or another hated Bush

    It’s hard to know what to say to a person who, even in late 2009, attempts to defend the Presidency of George W. Bush, even obliquely.

    Best to just laugh in that person’s face and dismiss pretty much everything else he/she has to say because — let’s face it — you’ve got to be m0r0n or a paid shill to utter such nonsense.

    What does this tell us about the big fish, Osama bin Laden? Because of this, the military will find some way of not capturing him alive.

    Or maybe it’s just parody.

  25. I really should proofread my posts before actually posting. I, of course meant “then” when I wrote “than”

  26. Ebay was just one more step in the final ascent of the corporation.

    Must be a hell of thing to have to tell a client, “well, even if we win, you may have to simply accept getting a license fee.”

  27. Ebay was just one more step in the final ascent of the corporation.

    Must be a hell of thing to have to tell a client, “well, even if we win, you may have to simply accept getting a license fee.”

  28. JAOI, I too am interested whether those who are not American citizens have, or should have, any human rights whenever they have the temerity to venture into US jurisdiction. What do you think?

  29. Jaoi,

    I am much more familiar with the Constitution, the Federalist Papers, and the Declaration of Independence than you. Trust me on that.

    Further, if you believe in what the Founding Fathers wrote than the Bill of Rights applies to everyone, American citizen or not. Any other belief is Un-American.

  30. If “Troofers v Birfers” is over, I’d like the pre-derailment topic.

    Paul, I have a couple of questions about your comment below:

    *******First, if the current patent owner really is a competitor for what is patented they are still likely to get an injunction if they win, as this study shows, and as eBay provides. Secondly, once that infringement is proven by the patent owner [and invalidity is not proven by the infringer] any infringement after that is going to be “willful” [even if it was not before] with treble damages and probable attorney fees, which is NOT going to be “the same royalty as the next guy.” It is highly likely to be far too costly to continue.*********

    Firstly, it seems you are aware that “competitor for what is patented” means that the patentee must actually practice the claimed invention to be able to get the injunctive relief. I’m guessing you are also aware that, as a result, the vast majority of the the large patent portfolios that companies develop for defensive purposes now have much less defensive value. Is that correct? Do you not consider it significant that companies’ motivations to develop those large portfolios are greatly diminished? Is that not a bad thing? Why or why not?

    Secondly, when you say “any infringement after that is going to be willful,” you are talking about infringement carried out by the infringer who just lost, right? But, unless appeals are exhausted, that infringer can still make the case that they had a good faith belief that the decision would be vacated by appeal. Is that not correct? Are you only talking about the case where appeals are exhausted? And is that any different than the outcome if an injunction were ordered? Would the injunction be stayed pending appeal?

  31. Dear Lionel,

    Re:
    “Exclusive right does not equal absolute right to injunction.
    Never has, never will.”

    I Never said it did, never said that even once.
    Please see my comment on this link:

    link to patentlyo.com

    * * * * *
    Re:
    “I don’t care where Obama tries the alleged terrorists…
    “You do not know what you are talking about. …
    “If you don’t think the terrorists deserve a trial,
    you’re not a real American.”

    You are insensate.
    Look in a mirror —
    It is you who do not know what you are talking about.
    You need some real help.
    Please get some real help my friend.
    You’ll thank me in the morning.

  32. And JAOI, I have no idea where you stand on this issue, so do not take this as a dart thrown at you when I say to anyone reading this

    If you don’t think the terrorists deserve a trial, you’re not a real American.

  33. And JAOI,

    I have explained to you on several occasions, please stop trying to interpret the law. You do not know what you are talking about. Exclusive right does not equal absolute right to injunction. Never has, never will.

  34. JAOI,

    I don’t care where Obama tries the alleged terrorists, other than that he tries them in a court of law. And they all should be tried or set free ASAP. Torture and throwing people in dungeons have no place in any America I want to live in.

  35. JAOI,

    I don’t care where Obama tries the alleged terrorists, other than that he tries them in a court of law. And they all should be tried or set free ASAP. Torture and throwing people in dungeons have no place in any America I want to live in.

  36. JAOI,

    I don’t care where Obama tries the alleged terrorists, other than that he tries them in a court of law. And they all should be tried or set free ASAP. Torture and throwing people in dungeons have no place in any America I want to live in.

  37. First, our Constitution is ignored, then our patent system slides into Global dust, and now, now our Country stands at risk at losing all we‘ve earned with sweat, toil and blood!

  38. And, what phucking Arrogance!, from the BO administration, on the breast cancer reversal! — G-D him and his phucking administration!

    Pee in our wife’s faces, and say what?; nothing at all rational in explanation!

  39. Dear Ned Heller,

    Re:
    “Just, I think Obama is far more concerned with his narcissistic world view than with the best interests of the United States. He is effectively putting the US on trial by this action. He seems hellbent on persecuting the Bush administration, the CIA and anyone else involved in the apprehension and questioning of the mastermind of 9/11.

    But Obama’s supporters who think like he does, which includes much of the ROW who do not factor in America’s best interests and who for one reason or another hated Bush, will undoubtedly applaud his decision.

    But, unfortunately for Obama, we still have freedom of speech in the United States and still have elections. This is one more log on the fire so to speak. Obama is quickly erasing the goodwill people had for him because of who he is and because he speaks so well. It may be that he will so alienate the American people that they will vote against democrats in the next election because of this and other actions.

    Back to the sheik. I have a bad feeling he will walk. What does this tell us about the big fish, Osama bin Laden? Because of this, the military will find some way of not capturing him alive.”

    * * * * *

    I’ve re-posted your insights, lest any thinking posters here may have missed reading it, lest any Americans forget.

    Life has not been the same for me or other New Yorkers who breathed the 9/11 aftermath for many days, or other Americans, and their progeny, who lost relatives, friends or neighbors on 9/11.

    I sense something is dreadfully wrong for America with the Mr&Mrs. now living in the Whitehouse.

  40. Dear Publius13,

    Re: “In his secret Muslim heart of hearts, do you think BO sympathizes with the terrorists?”

    Interesting, provocative and controversial question.

    Perhaps there is another reason Obuma is allowing the terrorists to be put on trial juxtaposed where they struck, but nothing rational comes to mind.

    This forthcoming terrorists-trial debacle reminds me of the straw that broke the Camels back.

  41. Hi A plurality of thresholding units,

    Re: “Kelo v. New London”

    Kelo v. New London was an abomination!, a Constitutional abomination!

  42. Re: “..appropriate competitor IP and then, if the worst happens, pay only the same royalty as the next guy!”
    First, if the current patent owner really is a competitor for what is patented they are still likely to get an injunction if they win, as this study shows, and as eBay provides. Secondly, once that infringement is proven by the patent owner [and invalidity is not proven by the infringer] any infringement after that is going to be “willful” [even if it was not before] with treble damages and probable attorney fees, which is NOT going to be “the same royalty as the next guy.” It is highly likely to be far too costly to continue.

  43. That is what makes the Ebay decision a double edged sword. A patentee that sues a competitotr on their patent that the competitor infringes, but thatthe patentee does not practice, stands in the same shoes as a non-practitioner. Why? No lost profits, right? Or are there? If the competitor’s product that infringes the patent competes directly with a product of the patentee, doesn’t failure to enjoin the competitor form making and selling that product reult in lost profits for the patentee? That is why we need more data that analyzes how the decisions align across these issues.

  44. Dear Ned Heller,

    Thank you for your insights. I believe you hit several nails on the head – you are so wise in the ways of the world. You ought to be on TV.

    I wonder when and if Obama’s actions will constitute treason, an impeachable offense? One can always dream.

    Other than my time in the Army, I have lived in the Big Apple all my life—I’m mad as hell and I’m not going to take it anymore.

  45. Dear hackwriterwriterhack

    Re: “Yes yes, JAOI, I know that YOU would do so 100%.”

    Not quite 100% — there are Constitutionally expressed exceptions to “the exclusive Right.” From a previous comment of mine:

    The Framers give Congress the means and the Power UP FRONT to regulate the “exclusive Right.” By including in Clause 8, “securing for limited Times,” Congress can pass patent statutes that grant more or less time to a patent, and, by statute, Congress has done so. And, also by statute, Congress has the Power to create different types of patents with different lifetimes, as they have done for Design Patents. Congress has also created Trademark statutes that live somewhere between Copyrights and Design patents.

    Thus, Congress has absolute Constitutional Power to administer our patent system, and it has rightly done so. Further, within the Constitution itself, one finds authority for Congress to exercise its Power to moderate “the exclusive Right” under certain constitutionally certified circumstances:

    (A) To regulate Commerce,
    (B) provide for the common defense, and to
    (C) promote the general Welfare.

    J Article I, §8, Clause 3:
    “The Congress shall have Power … To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;”
    Thus, in its body of antitrust statutes, Congress imposes certain limits when exercising a patent’s “exclusive Rights” in order to regulate Commerce.

    J The Preamble:
    “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

    Eminent domain power, when exercised over a patent’s “exclusive Rights,” for national security and defense, is absolutely consistent with the Preamble, i.e., to “provide for the common defence.” Thus, military appropriations bills in peacetime and wartime routinely include allocations for patent royalties.

    If an independent inventor discovered and patented a vaccine for Anthrax, but refused to license or manufacture it for his anti-American religious reasons, eminent domain could absolutely and reasonably be asserted to “promote the general Welfare.”

  46. Just, I think Obama is far more concerned with his narcissistic world view than with the best interests of the United States. He is effectively putting the US on trial by this action. He seems hellbent on persecuting the Bush administration, the CIA and anyone else involved in the apprehension and questioning of the mastermind of 9/11.

    But Obama’s supporters who think like he does, which includes much of the ROW who do not factor in America’s best interests and who for one reason or another hated Bush, will undoubtedly applaud his decision.

    But, unfortunately for Obama, we still have freedom of speech in the United States and still have elections. This is one more log on the fire so to speak. Obama is quickly erasing the goodwill people had for him because of who he is and because he speaks so well. It may be that he will so alienate the American people that they will vote against democrats in the next election because of this and other actions.

    Back to the sheik. I have a bad feeling he will walk. What does this tell us about the big fish, Osama bin Laden? Because of this, the military will find some way of not capturing him alive.

  47. Ned writes, “anything short of 95% approval of injunctions is an unmitigated disaster IMHO”

    I’m curious – is there no qualification to that statement?

    For example, is it, “anything short of 95%”… “where the infringing product is competing with the plaintiff’s own patent-protected product”?

    Or out of 100 infringed patents, where none of the infringing products competed with the patentees’ products, would you still grant injunction 95% of the time? (Yes yes, JAOI, I know that YOU would do so 100%).

  48. Dear Lionel,

    (Off subject question — what do you think about Obama trying the terrorists juxtaposed where they struck?)

    * * * * *
    Re:
    “I still believe the Supreme Court got it correct in eBay.”

    You simply do not understand the Constitutional meaning of “the exclusive Right”. How the hello can you consider yourself a patent professional?, I’ll never know!

    28% compulsory licensing is NOT what the Framers meant, period, and anybody who believes that lacks judgment and common sense. But you are in good company — our “top” Justices made that mistake — they are not crack patent practioners either.

    You, my friend, are stubborn, and worse, with all due respect, you do not respect our Constitution. I’ll bet you even like what Obama is doing to our country.

    * * * * *

    Off subject question — what do you think about Obama trying the terrorists juxtaposed where they struck?

  49. Paul, anything short of 95% approval of injunctions is an unmitigated disaster IMHO. When you have the likes of big software using its illegal monopoly to argue “public interest” and prevailing in the face of willful infringement, one has to wonder. Their whole strategy is to ignore patents, appropriate competitor IP and then, if the worst happens, pay only the same royalty as the next guy! Only the most cynical can react with approval of EBay in light the abuse that that case permits.

  50. JAOI,

    I still believe the Supreme Court got it correct in ebay, I just expected and believed that the vast majority of cases would and should result in injunctions.

  51. 72% (a vast majority) of winning patent owners granted district court injunctions AFTER the Supreme Court eBay v. MercExchange decision (in spite of all the troll litigation) is actually quite impressive. Certainly not in line with “the sky is falling” hyperbole about eBay at the time.
    But how many survived CAFC appeals?

  52. Oh dear. I think I have been misunderstood once again. I was suggesting that the flowering preceded the patenting (of computer-implemented inventions).

    I now wait to see what other comments emerge.

  53. Compulsory licensing? That’s one of those topics that every aspiring UK patent attorney has to know, in case a question comes up in the qualifying examination. But, after that, one can safely forget it because as a feature of real life patent practice it is non-existent.

    That is, until now. The eBay case might just set off the idea of compulsory licences, all over the world.

    Lionel, I can’t even tell you why, traditionally, the UK Statute has compulsory licensing provisions in it. Perhaps it’s a good example of the legislature performing a “declaratory” function. You know, like “Thou shalt wear a seat belt when driving a car.” Once that Declaration has been made, the public conforms with it and widespread prosecution of individuals is not needed.

  54. Dear Lionel,

    Welcome aboard me friend – you are beginning to see the light.

    Study Ned Heller’s comment – “he got that right!” – “you bettcha!”

    Thank you Ned.
    Thank you Max – you are so right on this issue!

  55. I am surprised by these numbers as well.

    As much as I oppose bright line rules, I really expected injunction denial to be much less frequent.

    Max, the same is true everywhere with respect to injunctions.

    As I said earlier, I thought there was more compulsory licensing in Europe (especially prior to TRIPS), at least at the legislative level if not the judicial level.

  56. When I started in patents, nobody patented electronics. Patents were for mech eng and chemistry. The patents world is unrecognisable now, but mostly because of the glorious flowering of the science and technology found in consumer articles (like cell phones and personal computing devices) that happened before the surge of investor interest in patents for computer-implemented inventions,

  57. Once upon a time, a long long time ago, patents were respected in the United States. People actually believed in the words of the Constitution about “exclusive rights.” Patents were property just as much as land. Violators were trespassers and treated accordingly.

    Then came the two Roosevelts who both were anti-monopoly and viewed patents not as property, but as monopolies that are to be viewed with at least caution if not hostility. By the 70s, patents were hard to enforce, not because of lack of injunctions, but due to an undermining of the presumption of validity in a number of circuits. This lead to forum shopping and a gross weakening of the patent system as a whole.

    But the major companies were still behind the patent system. This lead to the creation of the Federal Circuit to end forum shopping, but really to stop the undermining of validity that had occurred. But without missing a beat, the boys in the patent office got congress to authorize re-examinations to deal with the “issue” of badly prosecuted patents.

    For a time, the Federal Circuit held back the tide, but then they added to the perceived problem with cases such as Alappat and State Street Bank. EBay is somewhat as much of a reaction to State Street as to anything else.

    But today, the FTC and quite a few big companies have turned hostile to the patent system and are seeking “reforms” ostensibly directed to bad patents and trolls, but which result in changes that affect the whole system. The lack of reliability of an injunction and the reexamination system critically undermine the whole patent system.

    Their work is not done; and one of their leaders is now director. Can we hope for a better future?

    I doubt it.

  58. I’m staggered. These are cases in which the owner of an asserted patent claim that was found infringed, and not invalid or unenforceable, right? Three times out of ten, the court declined to grant the patent owner injunctive relief?

    It is often said of patent litigation in Europe that one litigates to get an injunction, with the quantum of damages being secondary. For me, that fits with the concept of a patent grant.

    But is that now all Stone Age stuff? Should we now be thinking of patents as tickets to participate in discussions on licensing?

    How big a proportion of the 28% were business method and computer software claims?

Comments are closed.