Supreme Court Vacates eBay Injunction

EBayITIn a landmark unanimous decision, the U.S. Supreme Court has reportedly vacated the appellate court’s decision against eBay — putting an end to the “general rule” that a permanent injunction should follow a finding of infringement of a valid patent.  Rather, the opinion by Justice Clarence Thomas rules that the decision of “whether an injunction should issue” is within the trial court’s discretion. Concurring opinions by Chief Justice John Roberts and Justice Anthony Kennedy.

Background: At the district court, eBay was found to infringe MercExchange’s valid patent. However, the district court refused to issue an injunction to stop the ongoing infringement because MercExchange’s patent was a disfavored type (business method), because MercExchange was willing to provide a license, and because of the contentious nature of the litigation, any injunction would be difficult to enforce.  On appeal, the Federal Circuit (CAFC) reversed, finding that the lower court “did not provide any persuasive reason that this case is sufficiently exceptional to justify the denial of a permanent injunction.”  Most controversially, the CAFC concluded with its “general rule that courts will issue permanent injunctions against patent infringement absent exceptional circumstances.”

eBay v. MercExchange ___ U.S. ___, No. 05–131 (2006).

Unanimous Opinion: The decision relies on the traditional “four-factor test” for determining whether to issue a permanent injunction:

A 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. . . . These familiar principles apply with equal force to disputes arising under the Patent Act.

The Court indicated that these factors must be applied on a case by case basis – noting that “traditional equitable principles do not permit such broad classifications.”

The Supreme Court flatly rejected the argument that patentee’s who only license should not qualify for injunctive relief — finding that “[s]uch patent holders may be able to satisfy the traditional four-factor test, and we see no basis for categorically denying them the opportunity to do so. To the extent that the District Court adopted such a categorical rule, then, its analysis cannot be squared with the principles of equity adopted by Congress.”

In its final word, the court emphasized that the “decision whether to grant or deny injunctive relief rests within the equitable discretion of the district courts, and that such discretion must be exercised consistent with traditional principles of equity.”

Roberts, CJ, Scalia, J, and Ginsberg, J, Concurring: Chief Justice Roberts provides a short concurring opinion that appears to caution district court judges in their “discretion.”

[T]here is a difference between exercising equitable discretion pursuant to the established four-factor test and writing on an entirely clean slate. .Discretion is not whim, and limiting discretion according to legal standards helps promote the basic principle of justice that like cases should be decided alike.

 The opinion notes that from “at least the early 19th century, courts have granted injunctive relief upon a finding of infringement in the vast majority of patent cases.”  According to the Chief Justice, this long tradition of injunctive relief should be awarded great weight.

Kennedy, J, Stevens, J, Souter, J, and Breyer, J, Concurring: These four Justices feel that times have changes, and that the tradition of injunctive relief might no longer be so compelling.  The Kennedy opinion is focused primarily on non-manufacturing patent holding companies and business method type patents:

In cases now arising trial courts should bear in mind that in many instances the nature of the patent being enforced and the economic function of the patent holder present considerations quite unlike earlier cases. An industry has developed in which firms use patents not as a basis for producing and selling goods but, instead, primarily for obtaining licensing fees. . . . For these firms, an injunction, and the potentially serious sanctions arising from its violation, can be employed as a bargaining tool to charge exorbitant fees to companies that seek to buy licenses to practice the patent. When the patented invention is but a small component of the product the companies seek to produce and the threat of an injunction is employed simply for undue leverage in negotiations, legal damages may well be sufficient to compensate for the infringement and an injunction may not serve the public interest. In addition injunctive relief may have different consequences for the burgeoning number of patents over business methods, which were not of much economic and legal significance in earlier times. The potential vagueness and suspect validity of some of these patents may affect the calculus under the four-factor test.

The equitable discretion over injunctions, granted by the Patent Act, is well suited to allow courts to adapt to the rapid technological and legal developments in the patent system. For these reasons it should be recognized that district courts must determine whether past practice fits the circumstances of the cases before them. With these observations, I join the opinion of the Court.

In the end: The court found problems with both the CAFC decision and the district court decision.  For those concerned about the actual parties (MercExchange and eBay), we’ll have to wait to see a new decision from the lower courts.

Crouch’s off the cuff analysis: I had predicted that the Court would apply equitable principles, but would announce that that injunctions should continue to issue in most cases.  [Prediction].  As it turns out, that decision is found in the Roberts Concurrence, but not in the majority. (Thus, I lost my $1 bet).  I also had not predicted that four Justices (Kennedy, Stevens, Souter, and Breyer) would come out so strongly against injunctions.  This decision may indicate a real shift in Patent Law and the strength of an individual patent.  My general advice to litigators: The injunction is now a big issue — make sure that you focus on evidence of irreparable harm from the beginning — including your cease & desist letter or initial complaint.  My colleague Tom Fairhall correctly points out that this decision adds yet another layer of uncertainty to patent litigation.

Based on this decision, it is now clear that the value of a patent does depend upon the identity of the owner. For instance, an industry competitor will be able to show irreparable injury much more easily than would a university or individual inventor who has no plans to manufacture a product.  Because the industry competitor has a higher likelihood of obtaining an injunction, it should be willing to pay more for the patent.  Interestingly, this valuation gap may spur more licenses and patent transfers.


36 thoughts on “Supreme Court Vacates eBay Injunction

  1. 36

    Preliminary Injunction Denied for Hockey Skate Patent

    The District Court of Minnesota denied a motion for preliminary injunction based on patent infringement in Torspo Hockey Int’l, Inc. v. Kor Hockey Ltd., 2007 WL 1752725 (D. Minn. 6/18/07). Kor Hockey owns a patentfor itshockey skate d…

  2. 35

    Please excuse me if I say that I found the decision to be particularly underwhelming. The basic principles of equity have been reinforced, something that should come as no surprise to any practitioner.

    What does seem to happening is a lot of prognosticating on what this all means for future litigation. Personally, long experience teaches me that it will likely have little, if any, significant effect. Suits will be filed, some plaintiff patentees will prevail, and equitable prayers for a permanent injunction againt future infringement will now be governed by traditional rules versus an “automatic” grant. Bear in mind that the “automatic” grant has never been “cast in stone”, but developed over many years of jurisprudence.

    Just a simple prediction from one who has “been there and done that”. Under situations such as presented here the grant of permanent injunctions will largely continue as before.

  3. 34


    All good questions.

    I don’t think that if an injunction is denied in one case it automatically follows that one should never be issued. First, a subsequent case may involve a different application of the patented invention. For example, the first case, where an injunction was denied, may have involved a subsequent invention that relied only a little on the previous patent at issue. The second might be a straight “rip off” of the patent in question. Next, the infringing party in the second case might be deemed to be more “on notice” than the infringer in the first case. What I took from the Court’s opinion was “no categorical rules” i.e. don’t assume because an injuunction was previously denied, it might not be issued subsequently.

    Next, questions of valuation are always difficult as you ably demonstrate. The more difficult and speculative, the strong the case for injunction. Some cases will present damages that are more speculative than others.

    Finally, should an inunction not issue, there may be a strong incentive for the parties to negotiate a license that has all of those elements. The only difference will be who is in the “driver’s seat.” With an injunction its one party – without one its the other. Who most deserves to be in that seat is what the four factor test is about, ultimately. As I mentioned in an earlier post, in the vast majority of cases, it will continue to be the prevailing patent holder.

  4. 33


    1. Upon the denial of injunctive relief, is the in futuro royalty a question of fact, as to which either party might demand a trial by jury, or does it remain an equitable remedy? Can other infringers force the patent holder to accept an offer of judgment based on collateral estoppel?

    3. What evidence best describes the value of the patent and the future royalty — an authorized licensee’s net, or an authorized licensee’s rate? E.g., assume Merc licensed the invention to a run-of-the-mill internet auction site for .01 per transaction or 0.10% of gross revenue, and earned $100,000 on the license. Either rate, applied to Ebay, would seem to capture a piece of the brand value, while the $100,000 net disregards the “highest and best use” that usually defines fair market value for the willing buyer and willing seller.

    3. In framing a compulsory license, how does the court deal with other terms and conditions, such as production quotas, quality assurances, marketing commitments, transfer rights, etc.?

    What I’m getting at is whether and when damages are an adequate remedy, and how future damages can ever be anything but speculative?

  5. 32

    Eric has posted a very intersting question.

    If I was representing a patentee and an infringer was seeking to resist the grant of an injunction, I would ask the court to order (a) regular financial statements concerning the infringement, and (b) security for a damages award either by a bank guarantee or by payments into an escrow account so that the infringer could not simply infringe for a year or two, transfer his assets away from the defendant company and leave a shell with no assets to pay the infringement damages.

    Then I would recall that the patent had been held valid and infringed (ex hypothesi on appeal to the CAFC). So any continued infringement would be wilful and the defendant would arguably be liable for triple damages. I would be looking for security for triple damages and an order for interim payments.

    When I had these in place, I would probably invite my wife or partner on a long-promised trip to Europe while we waited for our triple damages to accumulate. On visiting London we would not fail to stop at the Dorchester, to have dinner at Gordon Ramsey and to sample their tasting menu and fine wines (many Michelin stars and prices to match). Our chief worry would probably be that the fools would realize their disadvantageous position and negotiate an ordinary commercial settlement or (horror of horrors!) stop infringing.

  6. 31

    Under what circumstances should a wilful infringer be allowed to continue profiting from ill-gotten gains? Surely in equity wilful and innocent infringers should be treated differently?

  7. 30

    Since the sky is falling (NOT), I thought Some ridiculous predictions were appropriate:

    1) After the hundredth appeal arguing abuse of discretion hits the CAFC, the court creates a bright line abuse standard: no exploitation, no injunction.
    2) Supreme courts rules in LabCorp v. Metabolite that business methods require compulsory licensing arguing irreparable damage is impossible; injunctions are unobtainable. Patent lawyers drop out of MBA programs. Wall Street analysts throw away their copies of “How to get a Patent.”
    3) Trolls hemorrhage litigation costs in case after case. Portfolios are put up for auction on Ebay.
    4) Universities say I’m sorry and swap R&D money for patent rights. Big pharma bids to lock in most innovative faculties. Two Chinese universities and one Indian institution tie in the bidding with top US schools.
    5) Contingent patent litigation implodes.
    6) Market analysts and economists become latest “darling” hard-to-get experts in patent litigation. Top drawer fees exceed $25,000 per day.
    7) Large entities buy PG-PUBs prior art and patents at distressed prices.
    8) Independent inventors lobby congress in last gasp before drifting into American history like the bison.
    9) IP economic thinkers (Lemley, Lerner, Scotchmer …) declare patents are now efficient. Inventions trickle up to those who can best exploit them.
    10) Patent quality actually improves. PTO has tons of resources to do proper examination. No one files on worthless inventions.
    11) For the first time since the tech crash, patent filings at the PTO begin to diminish year over year. Innovation alarm bells are sounded. After being spun off as an independent governmental organization (in response to the ceaseless quality howl), the PTO eventually says it has too many employees and considers layoffs.
    12) Patent prosecution divides into two camps: useless filings are completely outsourced (for those still dreaming of past glory); and a premium inventions where firms are able to recognize and help clients understand how to exploit technologies.
    13) “Argument is cheap, give me art!” Is the cry at patent law conferences. Patent lawyers begin secretly subscribing to engineering journals attempting to bone up on technical skills.
    14) After patent reform legislation passes, large entities concentrate remaining IP budgets on opposition and on fire sale purchases of the few threats that remain. What’s left of litigation is blockbuster. Every case is full of intrigue and colorful characters. CNN broadcasts pay-per-view oral arguments before the CAFC. Billions are at stake in each case (anything less is either settled or brushed off long before). “Inequitable conduct” enters the public vocabulary as inventors and practitioners are grilled on the stand.
    15) A new type of troll emerges: the genius innovator who foresees the art and files proactively. After splashing cold water on his face, simply re-labels himself a startup and gets VC money to actually exploit the invention. Exit strategy is to litigate or sell out at the appropriate time.
    16) To address the then dire innovation problem Congress reduces fees for small entities by ninety percent. Independent inventors scoff. Large entities cry foul.
    17) China and India surpass US in patent filings.
    18) Patent lawyers are seen scouring Silicon Valley engineering ads hoping they can find entry-level jobs.

  8. 27

    When I went to law school, I was taught that property was a “bundle of sticks,” and one of the rights associated with property was the right to exclude. So, if you cannot exclude people from your property, do you really have any property?

    Before this decision, did you have property, but now you don’t? Is this a taking?

  9. 26

    I will continue to invent, but I will never ever submit another patent application to the PTO.
    Trade secrets are the way to go from now on for all of us, small guys without deep pockets…
    The whole patent system looks like a complete scam to me – it was a farce already before this Ebay thing, but now it’s just a scam…
    Enjoy US economic prosperity while it lasts, but it’s not gonna last forever…

    Small inventor who just got his first (and last) US Patent (already in wide unlicenced use by the industry)

  10. 25

    My dad invented the intermittent windshield wiper system used on cars for the last 20 years. He couldn’t get an injunction because the auto companies can out spend you and drag their feet! He must be turning in his grave. In automotive it’s a catch 22. Nobody will give you an order because your not experienced! Then the fact your not making them for the customer who refuses to buy, is used to defeat a request for injunction!
    It will basically mean you can be raped…and your damages are determined by the local hooker rates!!!! Willing buyer, willing seller.

    I don’t see how this promotes progress

  11. 24

    Lee seems to indicate that the court would differentiate between a patent holding company plaintiff and an individual inventor plaintiff. Many individual inventors go to patent holding companies because they do not have the deep pockets to enforce their patents. In the “old days” (i.e. more than 36 hours ago), the individual inventor (the good honest inventor who is not seeking to abuse the system) might sell his patent to “monetize” the invention, or might go to a firm that litigates on contingency basis. Now it seems that the market price for the patent would drop.
    The individual inventor now is stuck – he may not have the $$$ to practice the invention (for example, he cannot pay a team of 5 programmers salary for a year to implement the invention), but he wants to monetize his invention, which, after all, is his property (issued US Patent).
    How can this poor individual inventor enforce his patent now??? Patent litigation is EXEPENSIVE, and the infringers (i.e. deep pocketed behomoths from the BSA) know this – thus, when our individual inventor who has no money writes letters to the infringers, the infringers now have no injunction to fear, and can laugh off the inventor and say “go ahead, sue me” (in the worst case scenario, they pay a license and that’s just money – so why pay a license fee now before trial).
    Is there “a work around” in the “post-Ebay world”? Since not all plaintiffs are created equally, how can we “disguise” the patent holding company “plaintiff” as a “good plaintiff” and not a “bad plaintiff”.

    I would love an answer from any of you litigators out there.


    A simple patent agent (not a lawyer) who represents many small bright, industrious inventors without deep pockets

  12. 23

    An interesting subtext here is the point that Paul Cole makes: “the decision will come as a nasty shock to those who think that patent law is so specialised and so isolated from the mainstream of legal thought that ordinary legal and equitable principles do not apply.”

    In one way, this is the Court, which is generalist (as far as federal courts are) seeing the world in a different way than a specialized court. Whether the CAFC’s specialization has led to expertise or parochialism is a matter of viewpoint, but it’s interesting to contemplate how patent law would have developed had patent appeals remained in the general circuit courts.

    This case may be one clue.

  13. 22

    I am unsure that the Roberts concurrence represents much of anything. It indicates that the proper indication of the four factor equity test should, as it has in the past, continue to yield an injunction in the majority of cases. This view, however, could also be found in the Lemley brief (p.12 “injunctive relief is the appropriate remedy in ordinary patent cases”). I.e., there doesn’t seem to be profound disagreement as to the the notion that injunctions will still be the rule rather than the exception.

    Therefore, I could see Roberts, Scalia and Ginsberg as willing to uphold denial of an injunction in cases where the plaintiff had purchased the patent with no intent to practice, and the patent represented only a small part of the overall invention in question (i.e. a typical “troll” case).

    Kennedy’s concurrence doesn’t use the word “troll” but there’s no question to whom he’s referring when he discusses a “growing industry of firms” that purchase patents for the purpose of obtaining licensing fees.

  14. 21

    Although this decision doesn’t use the term “patent troll,” I think it will be read as a real slap to “patent litigation firms” who are seeking an injunction. I think that non-practicing patent owners who don’t all into the “researcher” or “self-made inventor” categories will have a very difficult time getting an injunction from the lower courts following this decision. I agree with Dennis’s analysis of the implications for litigation strategy, and that the real decision is found in the Roberts concurrance.

  15. 20

    @Timothy, what I meant was that the ruling would level the playing field for smaller firms. Usually a well-financed patent licensing operation has some strong patents, but vast majority in the portfolio are fillers. This ruling defanged those fillers, because going forward people are much more likely to call the bluff when threatened.

    Separately, I don’t think the propaganda in the pop media had any effect on the Court. The brief filed by the 35 professors did. As for the merit of the underlying case, IMO Merc had valid patents and more equitable litigation conduct. They’ll get their day.

  16. 19

    Paul says…”How could I be anti-patent when I earn my living from patents?”

    There are plenty of people who earn a living from patents who are for very restrictive rights or have additional political motivations.

    Paul, this is no attack on you. Rather, it is an attack on those who know how to use political rhetoric to acheive less than beneficial goals.

    As for the case you were involved in, it is quite different from here. There the discretion was to grant the registration. Here the discretion is to enforce a valid patent.

    Thanks for listening.


  17. 18

    As an interested layperson, would it be correct to assume that, where the criteria is met, there will be a significant ramp up in filings (a trend already in evidence) of complaints at the ITC at the same time as the filing of a suit in District Courts? Successful complainants could get the exclusion remedy at the ITC and the dollar damages at District. Or does yesterday’s ruling change that as well?

  18. 17

    It seems to me that what is really going on here in many of these “troll” cases is that the definition of what it means to infringe on a patent is in doubt.

    In patent law, at least, a number of people can simultaneously “invent” the same thing, and one gets the patent. The patent holder can then bring infringement actions against the others.

    Perhaps what is needed is a change in the definition of infringement. Perhaps the party alleging infringement should have to show that the infringer was somewhere exposed to the patented invention.

  19. 16

    Steve’s comment is revealing.

    My comment was neither pro-patent nor anti-patent. How could I be anti-patent when I earn my living from patents?

    I came up against a similar point to that which troubled the Supreme Court during an appeal from the UK Patent Office to the Patents Court about 15 years ago and in which I was arguing for the applicant. The UK Registered Designs Act read “The registrar MAY refuse any application for registration of a design or MAY register the design subject to such modifications, if any, as he thinks fit.” The design which we were seeking to register was of a Scotsman doll wearing a kilt and in one view showing male genitalia. The Registrar refused registration on the basis that there was a rule of Registry practice which precluded the registration of figures showing genitalia on the ground that registration would give offence to a substantial number of members of the public. During argument, Aldous J. objected to the application of an inflexible rule in a situation calling for the exercise of discretion, and said that this was a matter of black-letter law which should be known to any practitioner. There was no reason why the Registry should not establish guidelines, but they could not be more than guidelines and each case had to be considered on its merits. The decision is Masterman’s Applcation, and it is reported in 1990 or 1991 RPC. For some inexplicable reason the image which gave such offence to the Registrar occupies an entire page of the law report.

    So we did our bit for the permissive society in the UK and covered an important point on discretion, which is why the case may be of enduring interest.

    When the same point on the meaning of MAY came up in the US, I naturally expected the court to give the same answer, and indeed that is what happened. It is not a matter of politics but a matter of LAW, which is the discipline that we practice.

  20. 15

    The decision generally follows what I thought should happen as I discussed in earlier comments (link to on this blog and in an article I recently published (link to . I’m sure many of the other comments posted are correct that this decision was in (large?) part politically motivated, but given the history of equitable jurisprudence, it was inevitable.

  21. 14

    @steve: exactly!

    @Zan: Isn’t issue #5 resolved because the patent has been held valid and infringed by an Article III court? I wonder if Kennedy really thought through that comment. Stays pending re-exam seem unlikely.

    The bottom line of this case today seems to help Merc more than eBay because the S/C tossed the trail court’s anti-troll statements (no automatic denial to trolls) as well as the FedCir’s (no automatic granting). Drop in boiler-plate four-factor language and off we go. The majority also upheld Continental in passing, so that non-practicing argument is gone, a major blow to eBay.

    Outside of the parties, I don’t see a tremendous shift here as the S/C offered so little guidance in the majority. More fodder for briefs, but little real meat as Kennedy only got four votes. Smells like Grokster to me.

  22. 12

    What happens if the courts refuse to issue an injunction? I assume that the infringer would be allowed to continue to infringe, and that they would have to pay a royalty. So, did the Supreme Court just make (at least some) patents subject to a compulsory license? Do they have the authority to do that? Isn’t that something for the legislature to decide?

  23. 11

    Paul shows how well the anti-patents folks did in their propaganda compaign.

    I think all the realists and non-politcally involved people know that the Fed Cir was applying a may standard, just with the languaged tweeked for the patent world and with shorthand about when the various factors would be present.

    However, this got written up into the press as a must grant standard. Politics wins, brains lose.

    At least they didn’t even mention The Paper Bag case.

    Sometimes I don’t know whether to cry or enjoy my profession.

    Rant over.


  24. 10

    I couldn’t help but notice that they referred to the patent in question as a “business method patent” and made particular note of the fact that the patent is currently subject to a reexamination.

  25. 9

    I am new to the field so please excuse me if my point is “patently obvious.” Won’t this decision help out with the perceived problem of the “patent troll.”

    Before EBAY, the patent troll could not be practicing or licensing the patented invention, but still use the threat of an automatic permanent injunction to extract high settlement fees from those who do use the invention. In using a test based in equity, perhaps the courts will see that a plaintiff is not making use of the invention and that the defendant has invested large amounts of resources into that use, and decide that the balance of equities favors the defendant. As such, the injunction will be denied.

    This may cause the “patent trolls” to be more reasonable with their settlement demands, since they have less of a sword to wield in terms of the automatic injunction.

  26. 8

    Justice Kennedy (and his fellow concurring Justices) have just added a new fifth factor to the four-factor test.

    According to Justice Kennedy: “The potential vagueness and suspect validity of some of these patents may affect the calculus under the four-factor test.”

    The “calculus” is as follows: 4 + 1 = 5

    Here’s the complete listing of the new “five-factor” test:

    (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;
    (4) that the public interest would not be disserved by a permanent injunction; and
    (5) the potential vagueness and suspect validity of the patent at issue.

  27. 7

    This ruling goes a long way to restore US’ competitive edge. It’s going to take a few years to weed out the questionable patents and businesses based on holdups. But it will happen. The economic incentives and the rigor of our district courts will see to it.

    Hopefully the ruling would persuade the Congress and PTO to drop the “reform” proposals. Our system works fine. Weakening it would only make the European and Japanese competitors happy.

  28. 6

    I posted the following prediction on March 20 2006:

    “An Englishman’s view of Ebay v. MercExchange (and by definition I am a non-expert) is that the defendants should succeed on the issue of principle.

    The word “may” implies discretion, requiring the court to exercise that discretion based on the facts in the case and not merely to apply an inflexible rule. This principle governs the English courts, and I presume it applies also to the US courts since our legal systems have a common origin and many similarities…”

    I am tempted to gloat but have good reasons not to do so. Any good law student should have come to the same conclusion as the Supremes. He or she should know that (a) “may” in a statute requires discretion rather than an inflexible rule, and (b) injunctions derive from the courts of equity (equity and law remained somewhat separate in England until 1875) which granted injunctions only to prevent irreparable harm. Nevertheless, the decision will come as a nasty shock to those who think that patent law is so specialised and so isolated from the mainstream of legal thought that ordinary legal and equitable principles do not apply.

  29. 5

    The eBay earthquake Part 2

    Top line thought: The presumption of irreparable harm, long a mainstay of the Federal Circuits preliminary injunction jurisprudence, is now highly questionable. Expect it to come under sustained attack in the lower courts.
    Another top line tho…

  30. 4

    Supreme Court Compares Patent and Copyright Injunctions

    eBay Inc. v. MercExchange, L.L.C. (2006) The Supreme Court decided today that the traditional four factor analysis regarding injunctions is the appropriate standard for patent litigation. In that discussion, the Court noted that its decision was consis…

  31. 3

    This decision, and especially the argument presented by Kennedy, Stevens, Souter, and Breyer, represent the clear success some forces in the market have had in winning the POLITICAL argument regarding how the patent system should be weakened.

    How many arguments do you think we will now hear that a patent is “vague” and “of suspect validity”? Why even imagine that that argument will be restricted to business method patents? And what on God’s earth might these terms even mean, in practice? Is there any thing vaguer than describing a patent as “vague”, or “of suspect validity”, from a legal point of view?

    Basically, this decision is a clear victory for the infringers who want to find still another way to use other people’s ideas while affecting their own business with minimal downside. They have managed to convince a too easily gulled Supreme Court, via a broad PR campaign, that somehow patents are out of control, that somehow we are in a “new age” where patents don’t function as before, and that their enforcement should be radically weakened.

    Truly, where does the argument of Kennedy, etc. end, once it has been started?

  32. 2

    You state: “an industry competitor will be able to show irreparable injury much more easily than would a university or individual inventor who has no plans to manufacture a product.”

    On what basis do you make this generalization? It appears counter to the spirit of the following part of the ruling: “university researchers . . . may be able to satisfy the traditional four-factor test, and we see no basis for categorically denying them the opportunity to do so.”

    Is there some portion of the four-part test that you believe, a priori, university researchers cannot satisfy?


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