Michael Kasdan and Joseph Casino discuss recent shifts in reasonable royalty jurisprudence with a particular focus on the recent cases of Cornell, Lucent, and Lansa. Together, these decisions "indicate an emerging trend to more carefully scrutinize the evidentiary and economic basis of reasonable royalty-based patent damages awards in the setting of the appropriate royalty base, the application of the entire market value rule, and the calculation of the appropriate royalty rate." [Download Kasdan.Casino.Damages]
- Cite as Michael Kasdan and Joseph Casino, Federal Courts Closely Scrutinizing and Slashing Patent Damage Awards, 2010 Patently-O Patent L.J. 24.
Other recent Patently-O Patent Law Journal Articles:
- Dennis Crouch, Broadening Federal Circuit Jurisprudence: Moving Beyond Federal Circuit Patent Cases, 2010 Patently-O Patent L.J. 19.
- Edward Reines and Nathan Greenblatt, Interlocutory Appeals of Claim Construction in the Patent Reform Act of 2009, Part II, 2010 Patently-O Patent L.J. 7.
- Gregory P. Landis & Loria B. Yeadon, Selecting the Next Nominee for the Federal Circuit: Patently Obvious to Consider Diversity, 2010 Patently-O Patent L.J. 1.
- Edward Reines, and Nathan Greenblatt, Interlocutory Appeals of Claim Construction in the Patent Reform Act of 2009, 2009 Patently-O Patent L.J. 1.
“I withdraw the analogy of Equal Protection Violation for prosecution of trespass against orchards versus prosecution of trespass against factories.”
Translation: “I was wrong.”
See, NAL, it’s not that hard. And once you admit it, the healing can begin.
Dear Lionel Hutz,
Re:
“I learned a long time ago that JAOI believes “exclusive right” = “absolute right to an injunction barring important public policy considerations” He’s incorrect and cannot cite any case law to support his position, but that is what he believes.”
Would you agree with me that the answer to the question at the bottom of a previous post (repeated below) to Mr. IANEA, is,
(a) resoundingly, “Yes”?,
or just plain
(b) “Yes”?
—————-
Re:
“What if, after a trial finding validity and infringement of the patent-in-suit, the Judge simply said:
I hereby Order you to stop the infringement forthwith. If you do not, you will be guilty of contempt of court and I will issue a warrant for your arrest.
That would be a little thing we in the biz call an ‘injunction’.”
The substantive answer is that the pharking infringer may seek a Stay of Execution pending an Appeal, and he may have grounds for Appeal at the CAFC citing the USSC’s (corrupt) eBay decision which discriminates against one class of inventors, i.e., non practicing entity patent owners.
Supposed the pharking infringer were to prevail in the CAFC Appeal, and the District Court’s Order to Stop the Infringement was reversed, and the case was remanded for further litigation consistent with the CAFC decision.
What if, after further litigation, the DC Judge were favor the patent owner again and issue a TRO to stop the infringement and an Order to Show Cause against the pharking infringer as to why he would be justified to continue infringement (given, of course, that the pharking infringer has not come to terms with the patent-in-suit owner).
Then, the pharking infringer takes another CAFC Appeal – how would the CAFC deal with that?, if, e.g., the patent owner argued that the fee from a forced license from him to the pharking infringer would not assuage the patent owner’s his mental anguish?
And, arguendo some more, suppose the patent-in-suit covered the 2001 revolutionary Ticket in Ticket out tickets used in casino slot machines (so the casino didn’t have to deal with the labor and other horrendous distractions from handling coins or tokens in slot machines).
And further, that the NPE patent owner argued that he was against gambling on his personal moral grounds, and he did not want his patent used to fleece gamblers out of rent and college funds with the greater efficiency afforded by his patent. Further still arguing that, when my patent runs out, that’s soon enough for the casino to use the invention.
Is not the NPE patent owner absolutely entitled to stop the infringement notwithstanding the USSC’s eBay ruling?
—————-
Eight times in less than 48 hours…?
And I thought I was not going to be ignored.
nah,
That might involve a tort, or you might start punching somebody in the face, and I did not want to infringe on that discussion, because I might be accused of being unconstitutional.
In fact I pointed out that you were not a total liar.
You could do him an even bigger favor by pointing out that he hardly ever beats his wife.
ping, true. Forgive my orchard trespasses, please.
Speaking of the one the focus of whose eye I am obsessed with, where is she?
Cranky,
Hey, don’t get touchy with me, bright boy – I wasn’t the one that called you a liar.
In fact I pointed out that you were not a total liar.
Keep your eye on the focus of who you are obsessed with, or else I will get my sharks. And yes, each of them have lasers because I only had to click once when I purchased them.
ping, as NAL would say, “keep your eye on the focus of what we are talking about.” Besides, it would be a violation of Equal Protection to call me a liar when there are orchard tresspassers out there.
Nal,
According to Lionel, Cranky only prevaricated in 6 of the 8 times.
It’s not like Cranky’s a total liar.
awww, Cranky has a crush on NAL – look how he folows her like a little puppy dog.
It’s true. I dated a psychopath for a brief time, during high school – that experience has completely distorted my love life ever since.
Cranky is right. I am not saying he never asked for a case cite, but I checked the last two posts cited by you and he asked for no such thing in either.
Keep bringing the rope, Noise. Don’t let your adoring public down.
IANAE,
I learned a long time ago that JAOI believes “exclusive right” = “absolute right to an injunction barring important public policy considerations” He’s incorrect and cannot cite any case law to support his position, but that is what he believes.
NAL,
Cranky is right. I am not saying he never asked for a case cite, but I checked the last two posts cited by you and he asked for no such thing in either. The basic question is whether all persons committing a particular act need to be treated equally under the law regardless of the nature of the nature of the perpetrator and the victim. I agree with Cranky that they do not.
…any time your position is threatened, you deflect and refuse to answer the questions put to you. This behavior of yours is reflected not just on this thread, but pretty much anywhere your position is challenged.
Gee, that sounds familiar. Here’s a simple question for you. Just one:
Do you stand behind your statement that “It is a violation of Equal Protection to prosecute a trespasser of orchards, but not a trespasser of a factory complex,” or do you admit that it was incorrect?
…as you refuse to move forward and actually address anything of substance until the analogy issue is satisfied to your contentment…
I don’t think you get to unilaterally decide what is “of substance” here. In any event, I’m perplexed at your reference to “the analogy issue.” I told you expressly that I don’t care about your analogies. You made a statement that looks like a statement of law to me. To wit, “It is a violation of Equal Protection to prosecute a trespasser of orchards, but not a trespasser of a factory complex.” That’s no analogy. Yes, you were using that statement in an analogical argument, but I’m challenging the statement, not the analogy. (The analogical argument is logically invalid if your premises are false, but right now we’re focused on that single, simple statement.) I suspect that you actually understand that the statement at issue is not an analogy, but you’re attempting more of your patented obfuscation.
…. even though you prevaricate in , “I never asked for a citation to a case specifically involving orchards and factories.” (as this is EXACTLY what you asked for at …
Who is prevaricating? I asked only for a citation “to support” your statement. Surely you know that case support for a proposition doesn’t require that the facts are identical. Don’t you?
Mar 16, 2010 at 02:33 PM
Mar 16, 2010 at 04:27 PM
Mar 16, 2010 at 05:44 PM
I’m amazed that you continue to think we’re sluggish enough not to check your cites. In none of these posts did I ask you for a citation at all. Prevarication, did you say?
…And even your last post of Mar 17, 2010 at 09:27 AM asks for specifically orchards and factories
Your prevarication is shameless! In that post, I specifically told you that I wasn’t asking for a citation. Just a simple “I stand by my statement” or “I withdraw it.”
I withdraw the analogy of Equal Protection Violation for prosecution of trespass against orchards versus prosecution of trespass against factories.
This actually makes no sense. My best guess it that it’s probably intentional, since you appear pathologically unable to admit that you’re wrong. I asked you to simply tell us whether you stand behind your statement of law that “It is a violation of Equal Protection to prosecute a trespasser of orchards, but not a trespasser of a factory complex.” But instead, you respond with this mush.
I’m going to assume that what you mean to say is “I was incorrect when I said that ‘It is a violation of Equal Protection to prosecute a trespasser of orchards, but not a trespasser of a factory complex.'” If that’s not what you meant, please let us know.
awww,
Cranky has a crush on NAL – look how he folows her like a little puppy dog.
Noise,
You were living in another world tryin’ to get your message through.
No one heard a single word you said.
They should have seen it in your eyes
What was going around your head.
Ooh, she’s a little runaway.
Daddy’s girl learned fast
All those things he couldn’t say.
Ooh, she’s a little runaway.
And attractive alliteration – “penetrate your penchant for perversion.”
Was that for me?
Inadequate legal remedy: anytime the patent has not expired and the PO is unwilling to grant a license.
Balance of hardships: this is where the poor willful infringer argues that the PO is not harmed. But clearly he is if he his to go to court again to stop further infringement. And this is exactly where the court orders the PO to grant the infringer a compulsory license.
Net net, the infringer has gone to court and obtained an injunction against the PO.
Curious,
You have fallen for IANAE’s misdirection. My mouth was never where IANAE wants it to be. It is amazing how many times I have given my position, yet incredibly difficult for people to accept that position. Now IANAE needs DETAILS.
IANAE,
“don’t do anything you’re going to complain about later” – funny my complaining has to do with your behavior. I do not control that behavior (obviously), therefore, no matter what I do – you will do something that will cause me to complain.
The opinion that I will give you is that you are not interested in any real discourse, and any time your position is threatened, you deflect and refuse to answer the questions put to you. This behavior of yours is reflected not just on this thread, but pretty much anywhere your position is challenged.
Why would I bother giving you details for you to twist? You have your hands full as it is in re-calibrating your understanding of the patent right and what the holding in Ebay actually said (got that harm factor down yet? – perhaps if you STAREd at it, long enough, the DECISI[S]ons by the courts may penetrate your penchant for perversion).
Cranky,
As I do not need the statement to back up my premise, and
as you refuse to move forward and actually address anything of substance until the analogy issue is satisfied to your contentment, and
even though you say I won’t answer after I have answered in telling you that I cannot provide a case citation for a made-up analogy, and
even though you prevaricate in , “I never asked for a citation to a case specifically involving orchards and factories.” (as this is EXACTLY what you asked for at
Mar 15, 2010 at 01:32 PM
Mar 15, 2010 at 06:35 PM
Mar 16, 2010 at 09:28 AM
Mar 16, 2010 at 10:23 AM
Mar 16, 2010 at 02:33 PM
Mar 16, 2010 at 04:27 PM
Mar 16, 2010 at 05:44 PM
And even your last post of Mar 17, 2010 at 09:27 AM asks for specifically orchards and factories,
I withdraw the analogy of Equal Protection Violation for prosecution of trespass against orchards versus prosecution of trespass against factories.
********
The patent holder and the nature of the patent are not the proper focus here.
********
IANAE, please. Either there is a bright line automatic injunction, or it devolves into a popularity contest. Of course, whether or not there is an automatic injunction is really subject to a popularity contest anyway. Same with whether or not there are patents, and what words mean.
The best thing about popular rule is that it is imminently practical, and most resistant to violent revolution. But then, whether or not to have a violent revolution is, itself, subject to a popularity contest.
Dear IANAE,
Re:
“What if, after a trial finding validity and infringement of the patent-in-suit, the Judge simply said:
I hereby Order you to stop the infringement forthwith. If you do not, you will be guilty of contempt of court and I will issue a warrant for your arrest.
That would be a little thing we in the biz call an ‘injunction’.”
The substantive answer is that the pharking infringer may seek a Stay of Execution pending an Appeal, and he may have grounds for Appeal at the CAFC citing the USSC’s (corrupt) eBay decision which discriminates against one class of inventors, i.e., non practicing entity patent owners.
Supposed the pharking infringer were to prevail in the CAFC Appeal, and the District Court’s Order to Stop the Infringement was reversed, and the case was remanded for further litigation consistent with the CAFC decision.
What if, after further litigation, the DC Judge were favor the patent owner again and issue a TRO to stop the infringement and an Order to Show Cause against the pharking infringer as to why he would be justified to continue infringement (given, of course, that the pharking infringer has not come to terms with the patent-in-suit owner).
Then, the pharking infringer takes another CAFC Appeal – how would the CAFC deal with that?, if, e.g., the patent owner argued that the fee from a forced license from him to the pharking infringer would not assuage the patent owner’s his mental anguish?
And, arguendo some more, suppose the patent-in-suit covered the 2001 revolutionary Ticket in Ticket out tickets used in casino slot machines (so the casino didn’t have to deal with the labor and other horrendous distractions from handling coins or tokens in slot machines).
And further, that the NPE patent owner argued that he was against gambling on his personal moral grounds, and he did not want his patent used to fleece gamblers out of rent and college funds with the greater efficiency afforded by his patent. Further still arguing that, when my patent runs out, that’s soon enough for the casino to use the invention.
Is not the NPE patent owner absolutely entitled to stop the infringement notwithstanding the USSC’s eBay ruling?
broje, please. The patent holder and the nature of the patent are not the proper focus here. None of your scenarios deal with the patent right itself. I therefore misconstrue your scenarios as follows:
Scenarios 1-4: Inventor of a thing has a patent on the thing.
Is that a case where you think an injunction should not be granted? NAL, same question.
Scenario 1: Inventor of cold fusion refuses to let anyone use the technology unless Congress amends the Constitution to make the government a theocracy enacts laws that mirror those of his or her preferred religion.
Scenario 2: Inventor of cold fusion charges such an astronomically large amount of money that absolutely NO ONE can afford to use the technology.
Scenario 3: Inventor of cold fusion charges licensing fees calculate to make cold fusion cheaper than oil, but not cheaper than coal.
Scenario 4: Inventor of cold fusion licenses the patented invention exclusively for use in automotive vehicles.
I second that, IANAE. Please, put your money where your mouth is NAL.
Ned: Hypo for Willton and IANAE: you are a judge. On your calendar are requests for restraining orders by two women raped by the same man, both after offering them the prevailing rate for prostitutes in the area.
I think I could make a pretty good case for irreparable harm on those facts whether or not the lady was, shall we say, of negotiable affection.
NAL: The fact that you STILL keep saying that I am calling for automatic injunctions show that you simply do not understand my position.
Give us one set of facts, just one, on which you personally think an injunction should be denied for a patent found valid and infringed. Don’t go back to the literature, don’t do any research, don’t do anything you’re going to complain about later. Give us your opinion. We know you enjoy giving your opinion for free, so there’s no irreparable harm issue.
Be sure your facts involve nothing peculiar about the patent holder or the nature of the patent. Maintain your focus on the patent right, which is blind to these factors.
“(1) the patent holder and the nature of the patent are not the proper focus because the patent right itself is blind to these factors and (2) the focus that must be maintained is on the patent right”
And keep it brief, please. Bullet-point it if you have to.
OOPS, ONE MORE THING. GIVE ME LIBERTY OR GIVE ME DEATH.
This Country is in BIG TROUBLE. What Office is it that you hold? I forget!
Is it a violation to tell someone to go down pigeon road, when Eagles Landing is the other way? And the person going down the wrong road is without a compass. And the person that sent them down the wrong road is true north for Eagles Landing?
Cranky – you fool no one.
You’re very clever. But you’re still not answering the question.
The fact that you are stuck on the analogy and refuse to let go reveals the malcolmy fingerprints.
I’m not the slightest bit concerned with your analogy. If you go look at my original post on this particular topic, I simply challenged your ridiculous statement that “It is a violation of Equal Protection to prosecute a trespasser of orchards, but not a trespasser of a factory complex.” Since then I’ve asked you repeatedly whether you stand by that statement or not. For some reason, you won’t answer. And I have “malcolmy fingerprints.”
You wanted a specific cite to an actual case with orchards and factory when I EXPLICITLY told you that I took that analogy from NEW B. (specifically his Mar 12, 2010 08:39 AM post).
Obviously NEW B has stated that he is not an attorney.
Wow! Several stunning (despicable?) displays of intellectual dishonesty, not to mention arrogance, in just two sentences. You don’t think we’re smart enough to go back and read what was said? Yes, NEW B raised the “orchards and factoy” examples. But the jump to the Equal Protection clause was all yours. YOU said “It is a violation of Equal Protection to prosecute a trespasser of orchards, but not a trespasser of a factory complex.” Now you want to hide behind NEW B’s lack of education?
Incidentally, I never asked for a citation to a case specifically involving orchards and factories. Does that sort of misdirection ever work for you?
Obviously, there will be no case cite forthcoming.
That has been pretty apparent for a while now. That’s why my last several requests have been for a simple declaration of whether you stand by YOUR statement or not. The lengths to which you’ve gone to avoid answering are impressive.
And just as obviously, you do not understand the significance of the case cites I did provide, since you think that they speak against my position. You have let the messenger blind you to the message. Pay attention to the legislative call for equity (funny how you so quickly dropped THAT part of the argument when I reminded you of it), and to the strict classification of the patent right.
You’re trying to change the subject again. Once more, go look at my Mar. 15, 1:32 PM post. I challenged your single statement, and demanded you to support. For some reason, you want to obfuscate, instead. Isn’t that what you accuse IANAE and others of?
It’s a simple question, Noise. YOU said “It is a violation of Equal Protection to prosecute a trespasser of orchards, but not a trespasser of a factory complex.” YOU have stated numerous times that your mission is to attack false statements and to defend truth. So, what’s it going to be? Do you stand behind your statement, or do you withdraw it? I don’t need a citation. Just a simple “I stand behind that statement” or “I withdraw it.”
I see you guys saw the point in my analogy.
I agree wholeheartedly with NAL. The Feds simply shorthanded centuries of law on injunctions. The Supremes overruled the shorthand, but did not go further. The minority, argued for the position now being advanced as the law by Willton et al. But, that position was not accepted by the majority.
Gobbledygook – hey, we have our next nominee for the bench – Noise!
“What you want to call pigeon-holing has a legal term: stare decisis.”
You sound like Roberts in the Concurrence.
” You wanted a specific cite to an actual case with orchards and factory when I EXPLICITLY told you that I took that analogy from NEW B.”
TRACK SHOES, CHECK.
“Obviously NEW B has stated that he is not an attorney. Obviously, there will be no case cite forthcoming.”
SKIRT THE ISSUE, CHECK.
“And just as obviously, you do not understand the significance of the case cites I did provide”
AD HOMINEM, CHECK.
“Pay attention to the legislative call for equity, and to the strict classification of the patent right. The patent right classifications simply do not distinguish by what the four Justices in the minority opinion consider AS law.”
AND WITH THAT GOBBLEDYGOOK, SHE’S OUTTA HERE!
There is no pigeon holing – I am merely clearing the anti-patent rhetoric growing like weeds after the Supremes’ smack-down of the CAFC.
The desired outcome is just the natural outcome of understanding what the rights involved actually entail (the right to exclude)and what they do not (the right to make money or any other form of “do”). The Patent Right is no lottery. Just because a person has a patent and wants to lead does NOT mean that anyone must choose to follow.
What you want to call pigeon-holing has a legal term: stare decisis.
The so-called “four factors” are the proper focus, that is what that case said. Your attempt to short-cut it by pigeon-holing your desired outcome into a four-factor analysis undercuts the holding of the case. Stop it.
Here is the Ebay Supreme court ruling – all 376 words less the concurring opinions:
A company owned a business-method patent for an electronic market designed to facilitate the sale of goods between private individuals. The company sought to license the patent to two operators of Internet Web sites that allowed private sellers to list goods for sale, but the parties failed to reach an agreement.
The company subsequently filed a patent-infringement suit against the Web site operators in the United States District Court for the Eastern District of Virginia. A jury found that the operators had infringed the patent and that an award of damages was appropriate. However, the District Court, in denying the company’s motion for permanent injunctive relief, expressed the view that a “plaintiff’s willingness to license its patents” and “its lack of commercial activity in practicing the patents” would be sufficient to establish that the patent holder would not suffer irreparable harm if an injunction did not issue.
The Court of Appeals, in reversing the District Court’s judgment in pertinent part and in ordering a remand, (1) articulated a “general rule,” assertedly unique to patent disputes, that a permanent injunction would issue once infringement and validity had been adjudged; and (2) indicated that injunctions against patent infringement ought to be denied only in the “unusual” case, under “exceptional circumstances” and “in rare instances . . . to protect the public interest” ( 401 F.3d 1323).
On certiorari, the United States Supreme Court vacated and remanded. In an opinion by Thomas, J., expressing the unanimous view of the court, it was held that:
(1) In disputes arising under the Patent Act (35 U.S.C.S. §§ 1 et seq.)–no less than in other cases governed by the standards of equity–a prevailing plaintiff seeking a permanent injunction must demonstrate that
(a) the plaintiff has suffered an irreparable injury;
(b) remedies available at law, such as monetary damages, are inadequate to compensate for that injury;
(c) considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and
(d) the public interest would not be disserved by a permanent injunction.
(2) Neither the District Court nor the Court of Appeals had correctly applied this traditional four-factor test.
(3) Remand was necessary so that the District Court could apply that test in the first instance.
THAT IS IT.
Here are the takeaways –
The District Court was wrong- the view that a “plaintiff’s willingness to license its patents” and “its lack of commercial activity in practicing the patents” are NOT sufficient to establish that the patent holder would not suffer irreparable harm if an injunction did not issue. (IANAE especially needs to drink this in)
The Court of Appeals was wrong – There is no general rule unique to patents that excuses the application of the traditional four-factor test. Note that the CAFC reasoning was not held to be wrong – what was held to be wrong was that they skipped applying the four factor test. Had they applied the reasoning in each proper step, and not tried to place patents above the four factor test, the Supreme Court decisiosn would have been even shorter (both IANAE and Willton need to recognize that this is the position that I took, the position that I have not wavered from – my insightful additions may add color, but do not stray from this position)
The Supreme Court offered two concurring opinions and NEITHER are even considered dicta, as neither reached a majority standing. These concurring opinions do not hold even persuasive authority.
What the Supreme Court did NOT do:
The Supreme Court did not wipe out the large body of law that underpins the shortcut that the Court of Appeals attempted to take. That body of law largely holds that there is a presumption of irreparable harm if the patent is found valid and infringed (the CAFC needed to APPLY this reasoning in a step one analysis). IANAE asking for more than this is completely lacks legal foundation (I will still accept a citation IANAE if you can keep that citation on the actual point under discussion and not go of on a lark as you are want to do).
The minority view offered by Roberts, Scalia and Ginsburg contains neither a call for action, nor a change in jurisprudence. It is a mere observation and changes NOTHING.
The Supreme Court’s concurring opinion of Kennedy, Stevens, Souter, and Breyer, expressed the view that (1) in many modern patent cases, the nature of the patent being enforced and the economic function of the patent holder presented considerations that were unlike those in earlier cases; and (2) the equitable discretion over injunctions, granted by the Patent Act, was well suited to allow courts to adapt to the rapid technological and legal developments in the patent system. This was a call for change and that call was rejected.
The concurring opinions ARE NOT LAW.
Note that what Willton wants to consider as law deals with the nature of the patent being enforced and the economic function of the patent holder. Willton – this position has no legal foundation. You need no SCOTUS quote – as the fact that the group of four could not convince one other Justice to agree with them means that (1) the law does not hold that the NATURE of the patent being enforced and the economic function of the patent HOLDER make a difference to, nor should they make a difference in the evaluation of the four factors; and (2) courts should not be attempting to adapt to so-called rapid technological and legal developments of the patent system.
The most obvious reasons why are the reasons I have provided – (1) the patent holder and the nature of the patent are not the proper focus because the patent right itself is blind to these factors and (2) the focus that must be maintained is on the patent right – a right that LARGELY is unchanged from the original Constitution (in especially the most critical element of that right). The critical right, the right to exclude, is the EXPRESSED aim of protection (not evisceration), and that right belongs EXCLUSIVELY to the patent holder. This takes paramount status in the equity consideration. Again, for the umpteenth time, the four factors still need to be applied – but they need to be applied with the proper focus in mind. Willton, I will make a deal with you – I will drop the “thief” aspect if you will recognize the proper focus aspect.
Yes, the four factors of equity should be applied. Yes, that means that there is no such thing as an automatic injunction, yes that means that in most likelihood, there will be injunctions based on the large body of case law that prompted the Court of Appeals to attempt a short cut, Yes this was a p_ssing match that the CAFC lost, No, I will not go back through two essays to find Willton the specifics of when an injunction would be denied – Willton, you need to take the time to actually read those essays, instead of sticking so dogmatically to your views and outright dismissing other views. The fact that you STILL keep saying that I am calling for automatic injunctions show that you simply do not understand my position. Take the time to read what I actually wrote. Do not be like IANAE and make up crap just so he can respond to positions I do not hold.
Cranky – you fool no one. The fact that you are stuck on the analogy and refuse to let go reveals the malcolmy fingerprints. You wanted a specific cite to an actual case with orchards and factory when I EXPLICITLY told you that I took that analogy from NEW B. (specifically his Mar 12, 2010 08:39 AM post). Obviously NEW B has stated that he is not an attorney. Obviously, there will be no case cite forthcoming. And just as obviously, you do not understand the significance of the case cites I did provide, since you think that they speak against my position. You have let the messenger blind you to the message. Pay attention to the legislative call for equity (funny how you so quickly dropped THAT part of the argument when I reminded you of it), and to the strict classification of the patent right. The patent right classifications simply do not distinguish by what the four Justices in the minority opinion (and what Willton wants to) consider AS law.
“Did the NPE suffer physical injury? Mental anguish?”
The NPE’s wallet was raped. The NPE’s children are going to starve, and the infringer gets to make royalty-free widgets. How is that fair???
Can we talk about patent law now?
Can we start?
All I see is ad hominem and people talking past each other.
Has anyone here actually read the EBAY case? Does anyone here know what a holding means?
Coming soon: patent enforcement vigilantes!
Paul Kersey doesn’t need a court to enjoin his infringers.
Oh, and by the way, if the prostitute was only seeking a restraining order so that she could bargain for a higher price from the john for the next time he wanted to have sex with her, then no, I probably would not issue the restraining order. In that instance, the prostitute probably wasn’t even raped.
But thanks for taking us on that absurd detour. Can we talk about patent law now?
Hypo for Willton and IANAE: you are a judge. On your calendar are requests for restraining orders by two women raped by the same man, both after offering them the prevailing rate for prostitutes in the area. One woman actually is a prostitute. Should you not grant the restraining order to the prostitute on the basis that the price was right?
Nice strawman. How does this relate to patent infringement? How is a rape victim in any way similar to a non-practicing entity? How is the absurdity of giving a raped hooker her going rate as damages in any way comparable to issuing a reasonable royalty to a non-practicing entity as a remedy for patent infringement?
It’s pretty easy to see how the rape victim was harmed: she likely suffered physical injury and psychological damage. How is a non-practicing patentee harmed by a patent infringer? Did the NPE suffer physical injury? Mental anguish? Was the NPE’s business interfered-with? Did the NPE see a drop in income as a result of the patent infringement?
No, of course not. Why? Because a non-practicing entity, by definition, does not practice his invention. The NPE has no business that is being harmed by the patent infringer. The NPE did not see a drop in income as a result of the patent infringement because the NPE was not marketing a competing product.
By the way, next time you have a thought, let it go.
“Should you not grant the restraining order to the prostitute on the basis that the price was right?”
You probably shouldn’t grant the restraining order anyway. In either case. On the other hand, you probably should issue a warrant for the man’s arrest.
You are an imb*cile. Your name is Carrie Buck. I am Justice Oliver Wendell Holmes, Jr. What do I do?
I’m sure a restraining order would be effective in Ned’s hypo. Why didn’t anyone think of that before? We should have no more crime! This is wonderful!
Hypo for Willton and IANAE: you are a judge. On your calendar are requests for restraining orders by two women raped by the same man, both after offering them the prevailing rate for prostitutes in the area. One woman actually is a prostitute. Should you not grant the restraining order to the prostitute on the basis that the price was right?
NAL, your post at 11:17 on March 14 was simply terrific.
link to patentlyo.com
Looking back, when I wrote “Obviously, the best way to prevent the right from being violated is to issue the injunction,” I should have wrote that an injunction is the most effective way, not the best way.
“Best” implies “most right”, and clearly an injunction is not the most right way to prevent a patent right from being violated in every instance. If it were, the Patent Act drafters would not have included the language “in accordance with the principles of equity,” as such language implies that there are instances where an injunction is NOT the best way to prevent a right from being violated.
Wrong. The principles of equity are ALSO concerned with the respective states of the parties to the suit. I’m sorry that I can’t provide you with some quote from SCOTUS that says as much (doing so would be time consuming), but if you had taken a course in remedies in law school, you would have known that.
You don’t need to provide a quote, Wilton. Noise already provided one; she’s just refusing to acknowledge the important part. Here it is:
The legislative discretion to grant or withhold equitable relief in any class of cases must, under the equal protection of the laws clause of US Const 14th Amend, be so exercised as not to grant equitable relief to one, and to deny it to others under like circumstances and in the same territorial jurisdiction.
Truax v Corrigan, 257 US 312
For purposes of the current discussion, the “class of cases” must be taken to refer to patent infringement cases. But what does the court mean by “under like circumstances”? Noise would have you believe that the “like circumstances” also means the “violation of the patent right”. See post at 11:17 PM, March 14 (“The crux of the matter, and the proper focus is on ‘like circumstances.’ Focus must be on the right that has been violated.”) Of course, this makes no sense whatsoever. Which seems to be Noise’s standard approach. Make incomprehensible arguments, and then accuse you of obfuscation.
She also won’t answer the much simpler question of whether she stands behind her assertion that “It is a violation of Equal Protection to prosecute a trespasser of orchards, but not a trespasser of a factory complex.” Fancy that.
What a fitting name: “Noise Above the Law”
I’m thinking that the EPO’s oft-cited “Principle of Legitimate Expectations” is also playing a role here. A lot of excited people legitimately have high expectations, when they get issued with a patent, for they have been led, over many years, to believe that it is no more nor less than a hunting licence to commit unconstrained slaughter.
Actually Willton – I don’t miss this at all. And to both you and IANAE, in fact I point out that where the CAFC erred was in missing this. I DO point out that the Four Factors DO need to be run through. You need to take the time and actually read what I have written. Repeatedly correcting mistakes of people that arise out of such sloppy reading habits detracts from the meaningful discussion we could be having on the law.
You point it out, but you then provide no analysis as to when the Four Factors (as you name them) would bear a decision to not issue an injunction. All you do is say is “The Four Factors do need to be applied, but their application requires short work.” Based on this and the rest of your posting, it is very clear that you think “the Four Factors” is merely a test that the court must undertake pro forma before issuing the automatic injunction. Such an interpretation eviscerates Section 283 of the Patent Act, and that clearly could not have been intended by the framers of the Patent Act.
Second, the analysis should focus on the correct issues. This is another area where courts have overstepped – and not surprising that you find my position here difficult to swallow given your predilection for thieves’ rights. The proper focus (once again) on hardships must pinion on the actual right involved. How hard is it for a thief to do the right thing (for an infringer to stop infringing) balanced against how hard is it to recognize the patent right to exclude? (at the point in our discussion we are at – patent valid and infringed – this may be a trivial step – trivial, but necessary – highlighting the trivial does not eliminate the necessary).
First of all, for someone who likes analogizing patent infringement to trespassing, you really like using the analogy of theft, which is clearly inapt. Nothing is being stolen in a patent infringement case. No piece of property is being taken away from the patentee. There is nothing criminal about patent infringement, so stop calling patent infringers “thieves”. Give it a rest.
Secondly, you clearly do not understand how businesses are run. When a patent infringer is enjoined, s/he is ordered to cease all business operations. This causes the infringer to lose money because nothing is being made or sold. All the sunk costs of setting up said business go to waste unless the injunction is lifted. This may be fair when the infringer’s infringement is interfering with the patentee’s business of producing goods or providing services pursuant to its patent. But it is decidedly unfair to levy such hardship on an infringer when the patentee has no harm to speak of, other than the infringement itself.
Why defintely not Willton. Please re-read what I have said. Included therein is a reference to JAOI’s well versed exceptions that do provide meaning – full meaning at that.
Where? Show me. I shouldn’t have to comb through the two essays that both you and JAOI posted when you claim to know where the pertinent situations are.
All I am asking is for you to show me when, under your construction of the law, an injuction would be an improper remedy to fashion for the patentee. It appears that, despite your claim that you are taking equitable principles into consideration, you are still deluded into thinking that a patentee has an unqualified right to an injunction upon a finding of infringement. But please, feel free to show me that you are not so deluded.
The Principles of equity are constrained to the matter at hand, regardless of the permissibility of section 283 that IANAE gloms onto – that matter at hand is the PREVENTION of patent right violation.
Wrong. The principles of equity are ALSO concerned with the respective states of the parties to the suit. I’m sorry that I can’t provide you with some quote from SCOTUS that says as much (doing so would be time consuming), but if you had taken a course in remedies in law school, you would have known that.
Prevention does not mean evisceration. In your excitement to read section 283 – you gloss over the main point and seek to have the tail wag the dog (I am so jealous of hindsight for making this point – even the esteemed Dave Boundy used it on another thread) Connect the dots Willton – you are big boy – I know you can do it – start with step one – what is the patent right? Ask yourself, how best is this patent right to exclude prevented from being violated. Stay out of the weeds.
Obviously, the best way to prevent the right from being violated is to issue the injunction. However, if you ever took a remedies class in law school (or even a contracts class), you would know that an injunction is an extraordinary remedy. And just like in every other area of law, when an injunction would do more harm than good, it is the improper remedy for the judge to issue. That’s why injunctions are only issued when they are “in accordance with the principles of equity.”
So does “the exclusive Right” case I’ve been making.
That’s all I’m saying.
Well, you’re wrong.
The constitution gives you a lot of rights (of which a patent isn’t even one), and pretty much sets out no particular remedies for any of them. The remedy is always up to the court to decide based on the facts of the case, or left to Congress to “enforce by appropriate legislation”.
Dear IANAE,
Re:
“That hypothetical raises a clear constitutional issue…”
So does “the exclusive Right” case I’ve been making.
That’s all I’m saying.
Me thinks you may be too embarrassed to fess up.
…keep your eye on the focus of what we are talking about.
Excellent advice, NAL. But surely you can handle two conversations at once, especially since the issue is quite simple in at least one. So, are you standing behind your assertion that “It is a violation of Equal Protection to prosecute a trespasser of orchards, but not a trespasser of a factory complex,” or are you withdrawing it? Why won’t you simply answer the question?
Isn’t all this dodging, ducking, and running precisely the behavior that you condemn Mooney for?
JAOI: supposed the Congress issued a 35 USC xxx that said “a patent issued by the PTO covering improved widgets shall last in perpetuity.”
That hypothetical raises a clear constitutional issue, and there’s no way any appellate court would let it slide without at least hearing arguments on that point. The feds would have to justify the statute under some power other than Clause 8. If it was well argued on both sides, and the Supremes (equally hypothetically) had a good reason for finding that it was covered by the commerce clause or something, I’d be okay with it. In that unbelievably outlandish hypothetical case that would never ever happen.
Now, let’s get back to your current complaint about a situation that raises no constitutional issue at all.
NAL: “proving damages” as you would have it in a punch in the face scenario is vastly different than “prove irreparable harm to get an injunction” as one of the four factors.
It’s only different in a way that doesn’t support you. Proving damages in the punching case immediately entitles you to the remedy, but proving irreparable harm (the type of damages that entitles you to an injunction) is only one of several factors for an injunction. Granted, it’s the most important one, but still.
I don’t know why you think we disagree on the test for an injunction, other than you thinking the test ends with “and then grant the injunction anyway”.
NAL: Fixed your sentence for you.
That’s not “fixed”, it’s exactly what I said. Trespass is an excellent analogy for the right. It’s a terrible analogy for the remedy. Keep your eye on the actual ball, NAL – keep your eye on the focus of what we are talking about.
redacted? I don’t feel redacted.
(Cue Eddie)
Whooohooo!
This threads already at 251!
NAL,
It’s not hard to have an honest conversation with you – it’s just too boring.
JOAI,
From NAL’s post(s) – or is that post(S)? – she implies that there is nothing wrong with the Supreme’s eBay decision, nor with section 283.
How do you feel about the splinter in the Constitutional Rights Club?
Me thinks Mr. IANAE got redacted.
Boy, he must be pisssed.
IANAE states:
“You want a citation for “plaintiff has to prove his damages”? Because I already have a pretty authoritative citation for “plaintiff has to prove irreparable harm to get an injunction”. It’s even a patent case.”
IANAE – once again you resort to the twist mode: “proving damages” as you would have it in a punch in the face scenario is vastly different than “prove irreparable harm to get an injunction” as one of the four factors. I have already rejected your attempt to switch the standard, so your citation would have to be to the actual point I am making (not your usual changed-point-because-I’m-wrong-on-the-point-actually-being-discussed). I have already stated that the four factors have to be applied. Why do you insist on arguing points that are not mine? Is it really that hard for you to have an honest conversation?
“You love the trespass analogy because it is the most appropriate analogy to the actual rights under discussion”
Fixed your sentence for you. The Supremes never said to eliminate the presumption – they said only that the test must be walked through. As I have pointed out – the statement of the four Supremes doesn’t even rise to the level of dicta.
Keep your eye on the actual ball IANAE – keep your eye on the focus of what we are talking about.
“I DO point out that the accused deserves a fair trial. After which he will be hanged.”
“The issue in this thread here is not back damages; the issue here is the future license fee.”
Psst, JAOI, don’t tell IANAE what the issue is, he is having too much fun blowing smoke up NAL’s skirt.
Mr. IANAE lawyer is phucked because he isn’t going to be paid. Nothing else matters there.
Cranky, NAL told you not to be petulant, doesn’t she know that would mean that you would have to come up with a new sockpuppet? Don’t listen to her – I like this one.
Dear IANAE,
Hypothetically,
supposed the Congress issued a 35 USC xxx that said “a patent issued by the PTO covering improved widgets shall last in perpetuity.”
And the PTO issued such a patent.
And Mr. Inane infringed the widget patent.
And a District Court, the CAFC and the USSC upheld the validity and infringement of the widget patent and Ordered Mr. Inane to quit infringing else go to jail for contempt.
If you were Mr. Inane’s lawyer, would you think about that?
Don’t tell me, please let me guess – you’d think you got phucked.
Why would you think so?
However, as back when the Constitutional was drafted, and as now, there is one and only one meaning of “the exclusive Right.”
There is indeed, and that meaning tells you absolutely nothing about whether the patentee is entitled to an injunction. Exclusive right means that if someone else does the thing you can take them to court and win.
What if, after a trial finding validity and infringement of the patent-in-suit, the Judge simply said:
I hereby Order you to stop the infringement forthwith. If you do not, you will be guilty of contempt of court and I will issue a warrant for your arrest.
That would be a little thing we in the biz call an “injunction”.
With all due respect, please repeat after me 100 times:
The Constitution trumps all. Always.
The Supreme Court is the final word on the constitution, and they didn’t see any constitutional issues with their ruling on the statutory patent right.
The constitution allows Congress to grant an exclusive right. Congress granted an exclusive right. MercExchange got an exclusive right. The Supremes said “okay, you have an exclusive right, your right was infringed, now let’s talk remedy.” The constitution is completely silent on the question of remedy, it turns out.
Clarification:
However, as back when the Constitutional was drafted, and as now, there is one and only one meaning of “the exclusive Right.”
At least in the context of patents.
Dear IANAE,
Re:
“Two interesting points there. (1) The nation’s foremost authorities on constitutional law described the exclusive right as a “statutory right”, and (2) they explicitly said that an exclusive right isn’t the same as entitlement to an injunction.”
(1) I agree — Right on.
(2) “they explicitly said that an exclusive right isn’t the same as entitlement to an injunction.”
Of course they are not the same. I never said they were. Any asswhole can understand that they are not the same. Language can be complicated. Of course “exclusive right” and “injunction” can overlap in some meaning.
However, as back when the Constitutional was drafted, and as now, there is one and only one meaning of “the exclusive Right.”
What if, after a trial finding validity and infringement of the patent-in-suit, the Judge simply said:
I hereby Order you to stop the infringement forthwith. If you do not, you will be guilty of contempt of court and I will issue a warrant for your arrest.
link to en.wikipedia.org
Excerpt:
“A finding of contempt of court may result from a failure to obey a lawful order of a court…”
Re:
“I realize you’re not a lawyer, so you might need to be told this. In the event of any inconsistency between the CAFC en banc and the Supreme Court, the Supreme Court always wins. Always.”
Be careful or else readers may think you are a condescending asswhole.
With all due respect, please repeat after me 100 times:
The Constitution trumps all. Always.
And let that be the end of it.
Pull your head out and smell the coffee.
JAOI: Re: (JAOI, are you there?)
Yep.
Thanks a lot, Max 😛
JAOI: “It is a ‘bedrock principle’ of patent law that ‘the claims of a patent define the invention to which the patentee is entitled the right to exclude.’”
a patentee is entitled to the right to exclude
the exclusive Right, i.e., the right to exclude
the exclusive Right to their respective Writings and Discoveries
“[T]he exclusive Right”
Have you read eBay v. MercExchange? You’ll be surprised to learn that the Supreme Court was aware of this little-known “right to exclude” of which you speak.
“According to the Court of Appeals, this statutory right to exclude alone justifies its general rule in favor of permanent injunctive relief. 401 F.3d, at 1338. But the creation of a right is distinct from the provision of remedies for violations of that right.”
Two interesting points there. (1) The nation’s foremost authorities on constitutional law described the exclusive right as a “statutory right”, and (2) they explicitly said that an exclusive right isn’t the same as entitlement to an injunction.
Repeat yourself all you want, it won’t make you right.
what does that say about the inconsistency between the CAFC’s en banc Phillips the Supremes’ eBay decision?
I realize you’re not a lawyer, so you might need to be told this. In the event of any inconsistency between the CAFC en banc and the Supreme Court, the Supreme Court always wins. Always.
Re: Period. above.
Of course, other than the Constitutional exceptions previously discussed.
Slight less cranky – get out of the weeds. Please focus on the real issue. If you accept the application to the legislated concern at hand, do not become petulant with the analogy. Catch up to where the rest of the class is at.
Nice dodge – those track shoes are giving you some nice traction. But are you standing behind YOUR assertion that “It is a violation of Equal Protection to prosecute a trespasser of orchards, but not a trespasser of a factory complex,” or are you withdrawing it? Why are you afraid to simply answer the question?
Hello Max et al.,
Re: (JAOI, are you there?)
Yep.
Above I commented that, typically, if a patent Plaintiff prevails, and the patent-in-suit is found valid and infringed, “back” damages are set by the Judge or Jury, usually after listening to damage experts from both side as to what is appropriate, for example, is there a comparable “going rate”?
The issue in this thread here is not back damages; the issue here is the future license fee.
Importantly, and most relevantly, according to the Framers’ plain, literal writings in the Constitution, nobody but the owner of the patent gets to set the (future) license fee – nobody.
That is the most inherent & fundamental feature of a United States patent.
I’d like to hear anybody explain why they think it is more appropriate for a Judge or anyone else, after an infringement trial, to set the license value of a patent s/he or they don’t own, rather than the owner of that patent setting the value. And if the infringer refuses terms if they are offered, or if the owner does not offer terms, the infringer must cease the infringement. Period.
Here is some of my commentary previously posted:
It is interesting to note again that, Phillips, e.g., cited on page 7 of Gillespie v Dywidag, does not wash with the Supremes’ eBay anti-injunction decision. Page 7 Phillips citation:
“See Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005) (en banc) (“It is a ‘bedrock principle’ of patent law that ‘the claims of a patent define the invention to which the patentee is entitled the right to exclude.’”).”
The following was noted by Professor Crouch on this thread “Injunction against ‘any products’ that infringe is overlybroad …”
link to patentlyo.com
“WHERE ARE THOSE PRINCIPLES OF EQUITY: Interestingly, the injunction portion of the decision did not discuss the Supreme Court’s recent case of eBay v. MercExchange. EBay focused [almost solely] on the language of the statute typically associated with patent infringement injunctive relief – 35 USC 283.” (emp. added)
I (JAOI) have been attacking the USSC’s eBay decision from the top down. Better would be to attack from the bottom up, i.e., it is 35 USC 283 that doesn’t wash with Article I, §8, Clause 8. My argument, as you may recall, is that 283 is inconsistent with any literal, loyal or lawful interpretation of the Constitution, because there has been no amendment whatsoever to Article I, §8, Clause 8. This patent clause has always been interpreted literally, e.g., on the face of U.S. patents and in Phillips.
And since 35 USC 283 is therefore, at the very least, “suspect,” what does that say about the inconsistency between the CAFC’s en banc Phillips the Supremes’ eBay decision?
“Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005) (en banc) “It is a ‘BEDROCK PRINCIPLE’ of patent law that ‘the claims of a patent define the invention to which THE PATENTEE IS ENTITLED THE RIGHT TO EXCLUDE.’” (emp. added)
Bedrock is BEDROCK.
“35 U.S.C. 283 Injunction:
The several courts having jurisdiction of cases under this title may grant injunctions in accordance with the principles of equity to prevent the violation of any right secured by patent, on such terms as the court deems reasonable.”
How can any court deem it “equitable” to allow infringement to continue against the will of the patentee after a patent has been found valid and infringed?, when it is a bedrock principle of patent law that a patentee is entitled to the right to exclude?
Like bullets to a gun, Nothing is as Constitutionally fundamental to a patent as is the exclusive Right, i.e., the right to exclude:
“Section 8. The Congress shall have Power …
Clause 8: To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;”
“[T]he exclusive Right” can only be modified by a Constitutional Amendment (please see Article V, the procedure to amend the Constitution, and the Supremacy Clause, Article VI).
35 USC 283, and the USSC eBay decision based thereon, are in tension with the Constitutional.
I DO point out that the Four Factors DO need to be run through.
I DO point out that the accused deserves a fair trial. After which he will be hanged.
Make both Still cranky and myself happy with a citation to a court that applies that different standard.
You want a citation for “plaintiff has to prove his damages”? Because I already have a pretty authoritative citation for “plaintiff has to prove irreparable harm to get an injunction”. It’s even a patent case.
IANAE, what’s with you and being punched in the face,
Like arguing with you, it feels so good when I stop.
when the tort of trespass is so much more the better analogy?
You love the trespass analogy because the common law pretty much always gives injunctions for trespass to land. It supports your argument at exactly the point where the analogy fails – irreparable harm is trivial and presumed in trespass to land, whereas even reparable harm is often non-existent in patent infringement.
“And you fail to notice that Section 283 conditions an injunction on whether it is “in accordance with the principles of equity”.”
Actually Willton – I don’t miss this at all. And to both you and IANAE, in fact I point out that where the CAFC erred was in missing this. I DO point out that the Four Factors DO need to be run through. You need to take the time and actually read what I have written. Repeatedly correcting mistakes of people that arise out of such sloppy reading habits detracts from the meaningful discussion we could be having on the law.
“would fail to undertake an analysis with the purpose of balancing of the hardships, as equity demands. “
First, as I have said, the analysis should be undertaken. Second, the analysis should focus on the correct issues. This is another area where courts have overstepped – and not surprising that you find my position here difficult to swallow given your predilection for thieves’ rights. The proper focus (once again) on hardships must pinion on the actual right involved. How hard is it for a thief to do the right thing (for an infringer to stop infringing) balanced against how hard is it to recognize the patent right to exclude? (at the point in our discussion we are at – patent valid and infringed – this may be a trivial step – trivial, but necessary – highlighting the trivial does not eliminate the necessary).
“That is utter nonsense and is contrary to the intent of the drafters of the Patent Act.”
Citation please (I already know your faulty opinion of section 283, I want to see if you can show an actual case where that opinion is shared.)
“Under your construction of the law, that language would be meaningless.
Why defintely not Willton. Please re-read what I have said. Included therein is a reference to JAOI’s well versed exceptions that do provide meaning – full meaning at that.
“The patent right may be blind to whether the holder is an NPE, but the principles of equity are certainly not so blind.”
The Principles of equity are constrained to the matter at hand, regardless of the permissibility of section 283 that IANAE gloms onto – that matter at hand is the PREVENTION of patent right violation. Prevention does not mean evisceration. In your excitement to read section 283 – you gloss over the main point and seek to have the tail wag the dog (I am so jealous of hindsight for making this point – even the esteemed Dave Boundy used it on another thread) Connect the dots Willton – you are big boy – I know you can do it – start with step one – what is the patent right? Ask yourself, how best is this patent right to exclude prevented from being violated. Stay out of the weeds.
“I attacked only one thing… Or are you withdrawing it?”
Slight less cranky – get out of the weeds. Please focus on the real issue. If you accept the application to the legislated concern at hand, do not become petulant with the analogy. Catch up to where the rest of the class is at.
“The right not to be punched in the face is blind to whether the face belongs to a model or a prizefighter or a hermit. And yet, the civil remedy varies depending on the harm you personally suffer and can prove in court.”
IANAE, what’s with you and being punched in the face, when the tort of trespass is so much more the better analogy? I reject your repeated attempts to change the standard for patent infringement as a baseline for harm. There’s no way you can have an actual legal background in PATENT law and still argue your “harm you personally suffer and prove in court” concept. You want the different standard? Make both Still cranky and myself happy with a citation to a court that applies that different standard. BTW – the dependency on who has to show what simply was NOT part of the Supreme’s redirection. Get over it.
There’s no way you can have an actual legal background and still argue “same right violated = same remedy always” with straight face.
Sadly, that doesn’t appear to be strictly true.
The patent right is blind to whether the holder is an NPE or not.
The right not to be punched in the face is blind to whether the face belongs to a model or a prizefighter or a hermit. And yet, the civil remedy varies depending on the harm you personally suffer and can prove in court.
There’s no way you can have an actual legal background and still argue “same right violated = same remedy always” with straight face.
Please read my missive carefully before attacking it.
I attacked only one thing – your assertion that “It is a violation of Equal Protection to prosecute a trespasser of orchards, but not a trespasser of a factory complex.” Where is the citation that supports this proposition? Or are you withdrawing it?
I address the “under like circumstances”. I also give citations there. Reasoning cannot be arbitrary and must have some basis in the scope of what is being examined. What is being examined is the patent right, which carries with it no basis of actual practice. The patent right is blind to whether the holder is an NPE or not. To import a distinction when the right does not have that distinciton is arbitrary. This is hardly silly.
The patent right may be blind to whether the holder is an NPE, but the principles of equity are certainly not so blind.
Missive??? Something to do with missing the point? Like a ground to air projectile is a hittile (rather than a missile)?
That lawyers get hold of the wrong end of the stick is nothing special. But, when they continue to assail folks after it has been pointed out, that’s when it gets to be specially unfortunate.
Cranky, keep posting. My first laugh of the day.
slightly less cranky,
I address the “under like circumstances”. I also give citations there. Reasoning cannot be arbitrary and must have some basis in the scope of what is being examined. What is being examined is the patent right, which carries with it no basis of actual practice. The patent right is blind to whether the holder is an NPE or not. To import a distinction when the right does not have that distinciton is arbitrary. This is hardly silly.
Please read my missive carefully before attacking it.
As to the stretch – see Section 283, this relief section is granted by legislation, is it not? The citation is not nearly a stretch as you might imagine.
IANAE, don’t be duplicitous. It is a violation of Equal Protection for you to dispute NAL’s arguments when there are so many other people that are wrong on the Internet.
NAL,
Your ignorance and/or denial of what the patent remedy is mars any point that you want to bring to the discussion.
Re-Read Section 283. The courts of equity are bound to the PREVENTION of the VIOLATION of any RIGHT secured by patent.
Re-read it yourself. I re-read it (again), and they’re really not bound to anything of the sort.
“The several courts having jurisdiction of cases under this title may grant injunctions in accordance with the principles of equity to prevent the violation of any right secured by patent, on such terms as the court deems reasonable.”
The power to grant an injunction is permissive, the plaintiff must satisfy the principles of equity (the usual test for injunction), and the terms of the injunction are as the court deems reasonable. That’s a far cry from “the successful plaintiff shall get an injunction”.
NAL, even with your creative reading skills and dubious understanding of basic legal concepts, I fail to see how you managed to convince yourself that section 283 even marginally supports anything you’ve ever said.
Let’s not be duplicitous and ask for citation, when citation has been provided.
Nice dodge. Your Truax citation was discussing equitable relief, and equitable relief granted by legislation, at that, so it’s quite a stretch to say that it supports your assertion that “It is a violation of Equal Protection to prosecute a trespasser of orchards, but not a trespasser of a factory complex.” I’m still waiting for that citation, but I’m content to wait until you finish lacing up your track shoes.
You might also care to notice that the court in Truax was quite careful to qualify its statement by noting that the Equal Protection clause forbids arbitrary distinctions between persons “under like circumstances.” Is the owner of an orchard “under like circumstances” to that of the owner of the factory complex? Maybe, or maybe not, depending on the distinction that the law is drawing and the reason for the distinction.
Is an NPE “under like circumstances” to a patentee that is producing patented products? Is an NPE who has already licensed several parties “under like circumstances” to an NPE who has not? I think not, but you can argue this point if you like, keeping in mind that rational basis review applies to any distinctions like these. But please don’t base your arguments on silly pronouncements like the one under discussion.
35 USC 283 is a gem. Thank you NAL for drawing it to my attention.
It gives a court enjoying the necessary jurisdiction the power to grant injunctive relief “to prevent the violation of any right secured by patent”. Now, the right secured by patent is, for me, the right to exclude. So, if anybody has “violated” the “right to exclude” then it must be the CAFC in the EBay case. (JAOI, are you there?) Does that mean that, under 283, a court with jurisdiction can, at the request of the patent owner, and so long as it is equitable, enjoin the Federal Circuit (tell it not to do it again like it did in EBay)?
I thought I should look up the UK Statute, Section 60. There it says that you, if you are the patent owner, have the right to petition the court for relief (injunction, damages, account of profits, delivery up and destruction) but the court will decide whether you get the relief you request. Interesting.
hiding Hindsight
noxious Noise
wrecked Willton
and Dr. Evil, I am your mini-me and always will be.
NAL, thank you and welcome back. now i can return to the sidelines and stop typing. good luck with the bozos.
(the ha_te filter nabbed the post)
Focus people. Let’s focus.
I know its asking a lot – there’s a lot there, and a lot do not want to acknowledge what is there because it flies in the face of cherished beliefs.
So put aside the sniping and think about the substance.
Let’s not ask questions that are already answered. Let’s not be duplicitous and ask for citation, when citation has been provided. Let’s not ignore positive and meaningful comparison points that were previously openly disclaimed. And let’s not ha_te the message because of the messenger.
I have provided a legal scenario that fits exactly what the Supreme Court DID say (and explicitly distinguishes a minority view in a consent opinion that lacks any force of law from what the Court’s holding actually was) into exactly what the CAFC should have done and exactly what the proper legal focus of what the patent right to exclude is (covering section 154) and the limitation that the courts of equity are prescribed to (covering in section 283).
Marshall your angst and act like intelligent people.
correction: 283 instead of 278