138 thoughts on “Presumption of Irreparable Harm

    1. 17.1

      Do you have some reason to believe that the self-selected group of survey participants would have a different view on injunctions?

      1. 17.1.1

        NS II,

        As I often pick on you, I wanted to give you a +1 here for raising the excellent point that such polls suffer from serious flaws including self-selection.

            1. 16.1.1.1.1.1

              I know what you’re talking about, and the “nazi threat” is overblown in ukraine, as has been gone over online a bazillion times. But in the US, and the rest of the west (places that matter so to speak) it’s leftists making that call.

              1. 16.1.1.1.1.1.1

                No way 6 — Leftists simply do NOT have that type of didactic control of the narrative.

  1. 15

    Dennis, you once asked me how the interaction on this blog could be improved.

    Just look at what MM does on this thread of comments. He just insults people and does his best to try and defame people. And then there are so many people that have such vested interests in weakening patents that they don’t care about MM’s behavior and support him because they too would resort to any measure to end dissent.

    That is the dynamic that is going on.

    1. 15.1

      It’s been about a decade now that I gave the Prof. all the advice he ever needed on making this a “good ecosystem.”

    2. 15.2

      Sure, what this blog really needs are MORE glibertarian dominionist patent-huffing

      S
      C
      U
      M
      B
      A
      G
      S

      like the Bobbsy Twins here.

      Riiigght.

    3. 15.3

      “And then there are so many people that have such vested interests in weakening patents that they don’t care about MM’s behavior and support him because they too would resort to any measure to end dissent.”

      Says someone happily ignoring MM’s ideological mirror image.

      They both should go.

      1. 15.3.1

        I think Ben you accurately picked on the fact that the sentence you quoted refers to people like you. And your post illustrates that well.

        1. 15.3.1.1

          Wow.

          My post illustrates support of MM… despite saying MM “should go”.

          I believe even you can see what an embarrassing assertion that is.

          You’re better than this, NW.

          1. 15.3.1.1.1

            Ben,

            Stop being a pedant.

            Your “offer” is as bogus as your assertion that Malcolm and I are mirror images.

            Odd for the guy that upvoted Malcolm at nearly every opportunity back in the DISQUS days.

            While I certainly ascribe to the “words ought to be a bit sharp” — as an assault on the unthinking — I employ much much more and have ALL of my positions in solid understanding of the laws and history of innovation protection.

            The fact of the matter is simply you don’t like that I trounce you just about as often as I trounce Malcolm.

            As for Malcolm’s “one-bucket” tendency of lumping both Night Writer and I together, that’s ONLY because both Night Writer and I believe in strong patent protection for innovation that includes the design choice of “soft” in the computing arts.

            Night Writer and I have had our disagreements.

      2. 15.3.2

        One of the problems with fanaticism is that it cannot be self-diagnosed, and contrary views are never examined-only dismissed as wrong.

        1. 15.3.2.1

          NS II jumps and lands in the weeds yet again.

          Do you really think that any position that I oppose has not been examined?

          You would be very wrong. Not only have I examined such positions, I often know them better than the Lemmings that mouth them.

          There is nothing wrong with being “fanatical” (as you would attempt to use that word — I would prefer passionately knowledgeable).

            1. 15.3.2.1.1.1

              lol. When else do you come out of nowhere and jump in the weeds?

              And if you are not, then swell – you must then be talking about Malcolm (can’t remember you ever doing that), and if that is the case, then I retract my intimation that you are wrong (wrong that is, talking about me, since you wouldn’t be talking about me).

  2. 14

    At 8.3.2 we have:

    “See Article I, Section 8, Clause 8 of the US Constitution (“securing for limited times to … inventors the exclusive right to their respective … discoveries”).”

    and I personally had always supposed that “exclusive right” cannot mean anything else but an injunction on demand.

    But like many other things, as I get older, I see it differently now. I think it possible to comply with the Constitution (and patent law in Europe) without granting injunctive relief as of right. Mind you, what’s not to like about a presumption that injunctive relief ought to follow a finding of infringement?

    Below a Link to an MIP article on the subject by Hogan Lovells in the year 2015

    link to hoganlovells.com

    1. 14.1

      Any reason why you cut off the beginning of the sentence in your question of Article I, Section 8, Clause 8?

      “The Congress shall have Power…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.”

      One might interpret this clause as permitting Congress to grant an injunction on demand without forcing it to do so in all cases. Had it read “Congress shall promote…, by securing…”, it would be a different story.

      1. 14.1.1

        No — no one would (or could) interpret the Constitutional Clause in that manner.

        Every time you post, I have to wonder if you are even an attorney.

        1. 14.1.1.1

          I cannot imagine how someone can possibly interpret a grant of power as a restriction. Thank you for pinpointing one of the reasons you shouldn’t be taken seriously.

          1. 14.1.1.1.1

            Your view remains odd – what makes you think that my retort was that a grant of power was a “restriction?”

            Certainly, there is nothing in that grant of power to treat OWNERS of a negative right differently — but then again, you have not yet shown you understand the nature of the right under discussion, now have you?

          2. 14.1.1.1.2

            Why make things more complicated than they really are? Is it not so, that the Constitution announces unequivocably that the Congress can set up a patent system, if it chooses to do so. In other words, the patents clause tells us that a patent system (which is inherently a restraint on free trade) is not per se un-Constitutional.

            With the power given to it by the Constitution, the Congress can write a patent law and enact it. What that statute says about the terms and conditions for the grant of injunctive relief from patent infringement is up to the members of Congress to decide.

            It’s just that, for me, it is the prospect of injunctive relief that is needed, to “promote the progress”. Deny patent owners that prospect and there’s less reason to invest in innovation. Think pharma, for example.

            Logically then, the prospect of injunctive relief ie a restraint on free trade, should be confined to those who have invested their own money into progressing the useful arts and should NOT be available on the nod, on demand, as of right, for those who, far from promoting the progress of the useful arts, merely promote their own progress, by speculating in the acquisition of already issued and still-in-force patents acquired by others.

            That seems to be, anyway, the trans-Atlantic consensus view, these days.

            1. 14.1.1.1.2.1

              That’s just not how the US Sovereign set up our patent system.

              That amounts to a substantive impediment on the property itself based on the owner of the property.

              You might have to pause and think about that — the US system expressly set up its bundle of property rights of a granted patent to be fully alienable.

              This means that ALL legal aspects of a patent go with the patent regardless of owner.

              TOO many here seem to not to want to understand that, and think that somehow “equity” changes the substantive rights and full reach of that grant.

              Not only your misconception, but others here seem to want to make a difference between an actual inventor and any later patent owner.

              That ‘difference’ is nothing more than the drumbeat of Efficient Infringer propaganda.

              You say, “not make it any more complicated,” and I agree — understand WHAT a patent is, understand the extent of the bundle of sticks in that patent, understand HOW the US Sovereign set up our system, and understand the principles of equity in context of what the actual rights of a patent are.

            2. 14.1.1.1.2.2

              Please respect our Sovereign — after all such would be the polite thing to do.

              (Filter is STILL active…)

              Your comment is awaiting moderation.

              March 26, 2022 at 7:46 am

              That’s just not how the US Sovereign set up our patent system.

              That amounts to a substantive impediment on the property itself based on the owner of the property.

              You might have to pause and think about that — the US system expressly set up its bundle of property rights of a granted patent to be fully alienable.

              This means that ALL legal aspects of a patent go with the patent regardless of owner.

              TOO many here seem to not to want to understand that, and think that somehow “equity” changes the substantive rights and full reach of that grant.

              Not only your misconception, but others here seem to want to make a difference between an actual inventor and any later patent owner.

              That ‘difference’ is nothing more than the drumbeat of Efficient Infringer propaganda.

              You say, “not make it any more complicated,” and I agree — understand WHAT a patent is, understand the extent of the bundle of sticks in that patent, understand HOW the US Sovereign set up our system, and understand the principles of equity in context of what the actual rights of a patent are.

              1. 14.1.1.1.2.2.1

                I’m not thinking of ownership as the test whether the court should grant injunctive relief. Rather, I’m thinking of the grant of injunctive relief to the owner being for compatibility with the aim of the patent system as such, namely to positively promote the progress of useful arts.

                In other words, whether injunctive relief from infringement of my patent is my unfettered right, regardless of the circumstances, or is (as in England) a discretionary and equitable relief, given depending on my particular circumstances.

                1. Yet again, MaxDrei, I will (nicely) ask that you be polite and respect the choices that the US Sovereign has made.

                  You seem bent (instead) on yet again inserting a non-US position without regard for those US Sovereign choices.

                  And you do so in reply that flat out contradicts itself.

                  To wit (emphasis added):

                  I’m not thinking of ownership as the test whether the court should grant injunctive relief. Rather, I’m thinking of the grant of injunctive relief to the owner

                  One again, let me draw you directly to the waters of the well of wisdom:

                  US Sovereign has chosen to make the legal rights of a granted patent fully alienable.

                  The critical FACT at hand is the nature of the patent right – and that nature simply being disassociated from ANY relation to the owner of that right.

                  The US Sovereign has not –and recognizing the negative nature and the desired “and any improvement therein BUILDING on the inventions of others [which very much may STILL be under separate patent protection] – CAN NOT have a ‘working requirement.’

                  This means that ALL remedies are disassociated from the owner, and thus the rest of your statement of:

                  being for compatibility with the aim of the patent system as such, namely to positively promote the progress of useful arts.

                  In other words, whether injunctive relief from infringement of my patent is my unfettered right, regardless of the circumstances, or is (as in England) a discretionary and equitable relief, given depending on my particular circumstances.

                  MUST take these factual US Sovereign choices into account.

                  PLEASE note as I have posted multiple times that it is simply a mistake to even argue “unfettered right regardless of circumstances” and that applying the four factors of equity framework – with proper understanding of the nature of the patent right and the principles of equity and remedies – that of making the transgressed as whole as possible — will NATURALLY lead one to the logical conclusion that short of the most extreme external circumstances, an injunction is clearly the most equitable and best remedy given a finding by the courts that the negative rights of a patent have been transgressed.

                  As I have also pointed out, our courts simply fall into the weeds because of their lack of understanding of what the legal rights of patents actually mean, and there is NO SHORTAGE (witness the ‘advocates’ piling on here with misinformation) of those wanting a subversion of the patent right. That subversion is AIDED when one obfuscates the negative nature of a patent, when one engages the propaganda of the Efficient Infringer’s “0h N0es, Tr011s” scare-m0ngering.

                  Not that such is directly what you are doing, but – ever so politely – one simply NEED NOT compare this to any other jurisdiction – that as in England or otherwise.

                  Veritably, to do so without paying the proper respect to US Sovereign choices SHOULD BE rebuffed.

                  Yet, there you go again…

                  At the fifty second mark: link to youtube.com

  3. 13

    For a recent article on the presumption, it’s tradition, and why it is not incompatible with eBay, see The traditional burdens for final injunctions in patent cases c1789 and some modern implications, 71 Case W Res L Rev 403 (2020).
    link to ssrn.com

  4. 12

    BAHAHAHAHHA. Patents are to promote innovation. Not to shut down innovation when a troll purchases an old patent and doesn’t itself offer any products. Go back to prosecuting patents and filing IDS’s and leave the business of real law to others.

    1. 12.2

      If your “putative Tr011” shuts down another with an existing patent, then that other being shut down is — by definition — not innovating.

      Your “must make” bias shows how little you understand the nature of what a patent is.

      You very much are part of the problem, and the fact that you cannot see this only makes it more the worse.

    2. 12.3

      Let’s play the game. State University gets NIH grants to fund research which is innovative. State University with NIH, tax payer granted funds, patents that innovation. But, State University and by implication the NIH, does not offer any products covered by their patents. ACME corp blatantly copies that innovation with impunity. State University sues ACME Corp. Clearly State University and NIH aren’t properly using patents to promote innovation. ACME Corp. has every right to sell its product using State University’s patented innovation.

  5. 11

    A few points:

    1.The title of the post says “presumption of irreparable harm,” while the Twitter question discusses a “presumption that an injunction will issue.”

    They are not the same thing — there are four factors that equity considers whether to grant an injunction (mentioned in eBay itself). One can find (or presume) irreparable harm and still not grant an injunction for other reasons.

    2. Prior to eBay, most circuits had a presumption of irreparable harm in trademark cases upon a showing of likelihood of success on the merits. Most interpreted eBay to reverse that. The Trademark Modernization Act of 2020 reinstated the presumotion.

    3. The presumption in TM law (and presumably what is proposed here) is a rebuttable presumption. So the question is what would rebut the presumption. (For example, delay in seeking a preliminary injunction rebuts any presumption of irreparable harm.)

    4. IMO, it is a mistake to create a presumption of an injunction. In no other area of the law is there such a presumption — including property rights, which many argue mandates injunctive relief. It doesn’t. If someone trespasses on your land, you can request an injunction, but that is not an automatic thing.

    5. The rationale for a presumption of irreparable harm in patent cases is weaker than in trademark cases. Trademark cases are based on consumer confusion (a requirement for liability — likelihood of confusion). The damage from that is very difficult to trace and calculate, which is why it traditionally was presumed irreparable.

    Patent rights, in contrast, are limited monopoly rights in the invention. In the run-of-the-mill case, its value to the parties can be reasonably calculated — a reasonably royalty, or loss of sales to the patent owner. The amount of infringement by the defendant is generally known. So there is less basis to presume irreparable har.

    1. 11.1

      As we all know, the only Constitutionally guaranteed rights to an injunction are injunctions against enforcing laws that make it easier to vote, injunctions against don’t benefit Republicans. gerrymanders and injunctions against laws that make it more difficult to purchase an assault rifle.

      Also, Clarence Thomas is dead (I hope).

      1. 11.1.1

        “injunctions against gerrymanders that don’t benefit Republicans” is the correct phrasing.

        Also, what kind of a horrific piece of work is Ginni Thomas? She crawled out of some Texas rathole or something? My goodness.

    1. 10.1

      Another nonsense position from an anti.

      You should remember that “who owns” and the right itself are completely separate things — and such was (and is) a foundational aspect of the patent right under the US Sovereign system.

      It simply does not matter who brings a suit to enforce the fully alienable right.

      1. 10.1.1

        BAHAHAHAHHA. Patents are to promote innovation. Not to shut down innovation when a troll purchases an old patent and doesn’t itself offer any products. Go back to prosecuting patents and filing IDS’s and leave the business of real law to others.

      2. 10.1.2

        “ It simply does not matter who brings a suit to enforce the fully alienable right”

        LOL

        1. 10.1.2.1

          We’ve been over this before Chuckles / i even provided a link to the PatentDocs article featuring the award-winning historical verification of my point.

          But you be you Malcolm.

    2. 10.2

      Perhaps NPEs can be exempt from the presumption. Their only loss is a reasonable royalty. That is not an irreparable harm, as it can be calculated.

      1. 10.2.1

        Would NPE be defined as any entity who is asserting a patent that does not cover a product that the entity sells?

        In other words, you want a working requirement requirement to obtain an injunction?

        1. 10.2.1.1

          Both of your points at excellent, xtian.

          Some simply do not “get” why there can NOT be a working requirement.

  6. 9

    It is way too late, but better late than never.

    The current law is biased against inventors in many ways.
    I strongly believe that anything that is done to increase the enforceablity of a patent is for the best of society. I also submit that those that are trying to weaken the strength of patents act from the belief that patents promote the human existence as a whole. Those are commonly the ones that do not need that promotion.

  7. 8

    Equity is ancient and always present. Proportionality is fundamental to justice and ethics.

    Aristotle recognized equity to prevent law from too rigidly producing injustice.

    Lord Ellesmere observed that “[t]he cause why there is a Chancery is, for that men’s actions are so diverse and infinite, that it is impossible to make any general law, which may aptly meet with every particular act, and not fail in some circumstances”

    Sometimes, injunctions are proportionate, and sometimes they aren’t.

    If an infringed invention represents a fraction of a percent of the good or service in which it may be embedded, and an injunction could cause harm to third parties and harm to the infringer in vast disproportion, which cannot be the correct result of the operation of law.

    In other instances, the infringement represents a large proportion of the value of the good or service, and not halting further infringing use or sales would be a disproportionate harm to the rights-holder.

    The entity best disposed to find the just balance is the finder of fact and the arbiter of law, as empowered by the sovereign or by agreement of the parties to a dispute.

    This observation is utterly banal. That’s why the case was 9-0 and will never be overturned.

    1. 8.1

      proportionality is fundamental to justice and ethics.

      WHOSE ethics?

      (not an easy question, mind you)

      1. 8.1.1

        “WHOSE ethics?”

        People who aren’t patent attorney’s ethics bro. Also people who don’t have OCPD.

    2. 8.2

      Sometimes, injunctions are proportionate, and sometimes they aren’t.

      You forgot the all-important CONTEXT of what that proportionality is TO.

      Hint: it is to a NEGATIVE RIGHT, and not a right of any THING manufactured.

    3. 8.3

      The underlying premise in eBay, which is hard for the patent bar to swallow, is that patents aren’t special. Thus, injunctions in patent cases are subject to the same rules as injunctions in other cases. Therefore, without regard to ones sincerely-held religious views on the nature of patent rights, there is simply no inherent right to an injunction.

      1. 8.3.1

        See 2.1.1 — your statement here is inapt in consideration of the actual nature of the transgressed rights involved at point.

        1. 8.3.1.1

          Citing to your own assertions to establish the “actual nature” of patent rights? Have you considered switching from commentary to comedy?

          1. 8.3.1.1.1

            I am merely pointing you to a more developed post, rather than restating the entirety of the post.

            This is a normal action – that you seem to want to take offense at it only points out your shortcomings.

      2. 8.3.2

        The underlying premise in eBay, which is hard for the patent bar to swallow, is that patents aren’t special.
        Except that they are special. See Article I, Section 8, Clause 8 of the US Constitution (“securing for limited times to … inventors the exclusive right to their respective … discoveries”).

        1. 8.3.2.1

          Hit a filter…

          Your comment is awaiting moderation.

          March 24, 2022 at 5:27 pm

          Where else in the main body of the Constitution is the word “right” used?

        2. 8.3.2.2

          “The Congress shall have Power…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.”

          Is Congress prohibited from granting exclusive rights in other contexts? Is Congress prohibited from limiting a grant of exclusive rights by principles of equity? Are patents more special than copyrights?

          Is that all you got?

          1. 8.3.2.2.1

            In other contexts would not be patents.

            You asking “is that all you got” when YOU have even less is a bit gouch, eh?

          2. 8.3.2.2.2

            Is Congress prohibited from granting exclusive rights in other contexts? Is Congress prohibited from limiting a grant of exclusive rights by principles of equity? Are patents more special than copyrights?
            All you got is a straw man argument? Did my argument say anything about what Congress is prohibited from doing? It did not.

            While the term “right” is found in many locations in the US Constitution, the phrase “exclusive right,” as best as I can tell, is contained in only a single location within the US Constitution. For those who favor a textualist interpretation of the US constitution, the meaning of the word “exclusive” is “restricted or limited to the person, group, or area concerned.” If a patent does not provide the ability to exclude other from practicing the invention, then whatever right that was granted is not exclusive.

            My point is that the US Constitution EXPLICITLY made patents special. As such, they should be treated specially.

            1. 8.3.2.2.2.1

              “If a patent does not provide the ability to exclude other from practicing the invention, then whatever right that was granted is not exclusive.”

              Is there a difference between the “exclusive” with patents and “exclusive” with copyrights? It doesn’t seem like copyright holders have a genuinely exclusive right in the US.

              1. 8.3.2.2.2.1.1

                Ben,

                You just are not paying attention (maybe you should note how I am not a mirror to Malcolm); as I have already noted the differences in legal effect between the different aspects protected for copyright and patent and how those different legal effects are impacted by other portions of the Constitution.

                Reminder:
                Patents protect the aspect of utility.
                Copyrights protect the aspect of expression.

                The First Amendment to the Constitution expressly impacts expression.

            2. 8.3.2.2.2.2

              What seems to be confusing you is that the US Constitution did not make patents. It authorized Congress to make patents. Could Congress have given them special injunction rights? Yes. Did it? No.

              1. 8.3.2.2.2.2.1

                As I have pointed out, “special” is not needed.

                Actually recognizing what a patent right means (negative right, fully alienable) IS needed.

                1. An understanding that patent rights are created by statute IS needed. Your inability to grasp this simple concept makes me wonder whether you are actually a lobbyist.

                2. None of my points show weakness as you would ascribe.

                  I have never made the mistake that you suggest: that somehow patent law was not a Legislative Branch item (either by way of another branch, or by way of the power-distribution effect of the Constitutional grant.

                  Your jibe misses – and not by a small margin.

              2. 8.3.2.2.2.2.2

                Re: “..the US Constitution did not make patents. It authorized Congress to make patents. Could Congress have given them special injunction rights? Yes. Did it? No.”
                Indeed, and what Congress actually did give us is 35 U.S.C. 283, which states that patent infringement injunctions “may” be granted “..in accordance with the principles of equity..” A required automatic injunction in every winning patent case was never statutory even before eBay.

                1. As I have long noted Paul, that section of law (and any section that permits one branch of the government to operate under authority especially ascribed to another particular branch) is applied with strict scrutiny (if it be applied correctly).

                  It is a rather unfortunate happenstance that those who may have argued for “required automatic” do not instead take the fact that I have provided, as such [with the understandings of both the nature of what the patent right IS – sans any notion of “working requirement” or “must have product” AND the nature of the principles of equity – given the words I highlighted in the statute], we would NOT be awash in the MISinformation and Efficient Infringer propaganda that has infested our nation.

              3. 8.3.2.2.2.2.3

                What seems to be confusing you is that the US Constitution did not make patents. It authorized Congress to make patents.
                And why is that important?

                Could Congress have given them special injunction rights? Yes. Did it? No.
                The reality is that Congress merely wrote “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,” which leaves the specifics up to the Courts to figure out. It is the job of the Supreme Court to interpret the law and that interpretation should be made with the language of the US Constitution in mind — bringing us back to the US Constitution and what is written therein.

                Your position is that the words of the US Constitution can be ignored in this matter. My position is that a textualist interpretation of the US constitution would give the language of the US Constitution meaning and the language of 35 USC 283 should have been interpreted in view of that language.

                1. Entirely agree – and this is also one reason why I have provided to the interlocutors here (even as they choose to ign0re those posts) the very words, with emphasis for the important context of WHY (and to what effect) the courts may act.

                  Turning this into some type of Efficient Infringer protection program is most definitely NOT in keeping with the direct words of Congress – from whom that Constitutionally derived power is borrowed (again noting that in situations in which legal authority makes a jump from one branch to another, the proper view of the Supreme Court has always been on strictly construing the limits of that authority).

                2. Thank you for clarifying your position, which I respectfully submit is illogical. The US Constitution is what enabled Congress to enact 35 USC 283 in the first place, but that doesn’t justify presuming that Congress intended to exercise the full scope of its Constitutional authority. Unless you are claiming that Congress was obligated to recognize a presumption of irreparable harm, you are just projecting.

                3. Please clarify:

                  doesn’t justify presuming that Congress intended to exercise the full scope of its Constitutional authority.

                  What scope of authority are you inserting as to NOT being exercised?

    4. 8.5

      If an infringed invention represents a fraction of a percent of the good or service in which it may be embedded, and an injunction could cause harm to third parties and harm to the infringer in vast disproportion, which cannot be the correct result of the operation of law.
      If the infringed invention represents a fraction of a percent of the good or service, then redesign the product to drop it. What is so hard about that?

      The Patent Clause of the Constitution Clause doesn’t give a lot of guidance, but it does talk about an “exclusive right.” Should we discard that right just because the other party embedded the invention into something else?

      While there may be some situations in which “equity” calls for something less than a full injunction, that should be the exception.

      1. 8.5.2

        Laughter is the sound of surprise, so anon’s nascent comedy career is hopeless.

        Wandering, yes the exclusivity right is an important value, and that importance should be a factor in an injunction decision. Yet it cannot mean that a relatively minor contribution can overwhelm major investment and reliance interests of producers and third parties.

        The right should not be discarded, but it also cannot be unlimited, like all rights.

        1. 8.5.2.1

          You must take a rather per verse pride in being so wrong so often and so thoroughly.

          You really should have a heart to heart with your patent attorney.

          You keep on wanting patents to be something that they are not.

        2. 8.5.2.2

          Yet it cannot mean that a relatively minor contribution can overwhelm major investment and reliance interests of producers and third parties.
          The exclusivity of allegedly “minor” contributions can be ignored so long as you wrap them up with other things. Is that what you are saying?

          Taking your logic further, if I infringe a single patent, then you might grant a injunction. However, if I infringe 1,000 patents, then the contribution of each patent is very likely very minor and thus an injunction would not grant.

          minor contribution can overwhelm major investment
          Major investment for minor contributions? Seems odd, does it not?

          reliance interests of producers and third parties
          In other words, the more important an invention, the less likely an injunction will issue. And people wonder why many of us think the US patent system is broken.

          1. 8.5.2.2.1

            WT you have it exactly backwards. If a completed product has 1000 patented elements, some will be critical to the sale of the item and some entirely immaterial. An injunction stops all sales- potentially to protect the exclusivity right of an immaterial element that can be practicably removed from the product once in the manufacturing phase.

            A penny should not hold up a dollar, even if the owner of the penny has a nominal right to exclusivity.

            1. 8.5.2.2.1.1

              Marty,

              You continue to demonstrate a lack of understanding, a lack of respect, or both as to what a patent is.

              Put simply, you do NOT get to dismiss “the penny on the dollar,” just because it is a penny.

              In fact, after having been found guilty of transgressing the (negative) rights of “that penny,” if — as you claim — “that penny” is “some entirely immaterial,” then the transgressor has every impetus to simply not include that “immaterial” item.

            2. 8.5.2.2.1.2

              An injunction stops all sales- potentially to protect the exclusivity right of an immaterial element that can be practicably removed from the product once in the manufacturing phase.
              As I said, your take is that exclusivity doesn’t matter so long as your wrap up the invention with a bunch of other things.

              A penny should not hold up a dollar, even if the owner of the penny has a nominal right to exclusivity.
              Then get rid of the penny. You are breaking the system to protect the infringer. It should be the other way around. The onus should be on the infringer to to fix the problem. If the immaterial element is truly immaterial, then remove it. If the infringer pushes back (i.e., it’s too hard or “it’s too expensive”), then maybe the element is not as immaterial as advertised.

  8. 7

    OT, but I think that the US sanctions will prevent us from prosecuting patents in Russia. I don’t do much work in Russia but I do have a few applications in Russia.

    I am not sure how this will affect all the inventors there. I’ve worked with so many really great people in Russia and the Ukraine. Really sad.

    1. 7.1

      OT, but I think that the US sanctions will prevent us from prosecuting patents in Russia. I don’t do much work in Russia but I do have a few applications in Russia.
      When Russia is talking about confiscating foreign-owned prosecution, do your clients really think those patents will have any value?

      Russia is on the path to becoming an economic pariah in the world. A country’s economy cannot and will not attract foreign investment if there is a high risk that this investment will be subsequently confiscated by the government.

      Russia got back on track (economically) after the collapse of the Soviet Union by putting in place conditions that allowed foreign investors to come into the country. This included paying off Czarist-era debts that the communists refused to pay when they took over the country. If Putin continues to go down the path he is taking, he’ll set back Russia’s economy a 100 years.

      I’m pretty sure the oligarchs know this. While Putin may have created their wealth, he is in the process of destroying it all. This is not going to end well for Putin. We can all hope that the fallout of Putin’s fall stays within the borders of Russia (pun intended).

  9. 6

    Just stepping back a little, when’s the last time Congress ever abrogated any SCOTUS patent decision, especially one that was unanimous, like eBay?

    1. 6.1

      Well . . . not a Congress on this planet. Yet, with NASA just confirming the existence of more than 5,000 worlds beyond our own . . . perhaps such justice-by-abrogation exists somewhere out there . . .

      link to cnn.com

      1. 6.2.1

        Sorry, I posted that link, the result of my Google search “supreme court decisions overturned by congress” without looking at it carefully enough to see that it wasn’t relevant. This article is a little more relevant.

        link to theintercept.com

          1. 6.2.1.1.1

            Did you not read the article or do you just think Ledbetter is not a more recent example than Deep South Packing?

        1. 6.2.1.2

          It is a tricky issue. Even if Congress wanted to overturn Alice, I think it would have to by the consent of the Scotus as Alice is really based on saying that the claims in Alice were unconstitutionally granted.

          It is, though, a giant complicated topic.

    2. 6.3

      Deep South Packing wasn’t unanimous, but it was abrogated by Congress with 35 USC 271(f).

      1. 6.3.1

        Great find! So it seems like we have to go back half a century already just to find a contentious 5-4 case that was abrogated.

        Also, I really appreciate the opening lines to the majority opinion.

            1. 6.3.1.1.1.1

              A more recent case (circa the AIA) was the change to the Marking portion of the statute (albeit, the court had merely more recently realized that earlier decisions were in error).

              But I am curious – why is it that you think that timing is important?

              I would rather posit that Congress (today) is simply more fractured (polarized) and BOUGHT OFF as better reasons why getting that body to rightfully reclaim its Constitutionally anointed power to write patent law — as to the law written from the Bench — is not likely to happen any time soon.

              1. 6.3.1.1.1.1.1

                It was the Fed. Cir., not the Sup. Ct., that had temporarily upended the prior statutory interpretation of the patent marking statute into a bounty hunter paradise until quickly overruled by Congress.

                1. Fair enough point about which body in the Judicial Branch.

                  All else from you though, is of course, nonsense.

                2. It was a federal district court, specifically Polster of N.D. Ohio (and more specifically, I have it on authority, a law student clerking for him) who had done the unending in Unique Product Solutions. The Federal Circuit dismissed the case as moot and vacated Polster’s (the law clerk’s) decision in view of the America Invents Act.

                  link to cafc.uscourts.gov

                3. Numerous qui tam bounty hunter suits under the “False Marking” statute 35 USC 292 had been filed following a Fed. Cir. “per article” definition of “such offence” for bounty fee recovery, before a later Fed. Cir. Solo Cup decision and the AIA modification of that statute in response to those qui tam suits that was applied in that later case.

  10. 5

    I would look at the analysis as to whether or not an injunction advances the useful arts. Does an injunction advance the useful arts or does it interfere with it? Considering that patent law is clearly rooted in the Constitution, it seems like that would be a good place to start any analysis associated with the rights of patent holders. It would take some work to more clearly delineate the contours of that analysis, but I expect it could be done without too much trouble.

    1. 5.1

      LOL, oh yes, the same tried-and-true “advance the useful arts” test applied repeatedly on a daily basis by thousands of examiners at the PTO and courts across the nation.

      1. 5.1.1

        Take care there – the proper term is not “advance,” but rather “promote” and includes the advertising notion of promotion.

        As anyone who has studied innovation can tell you, OFTEN initial “advances” are just not advances in the colloquial (often viewed as linear) sense of “better, cheaper, or the like.”

  11. 4

    It seems to me that it’d be better to shift the balance by increasing the magnitude of damages for an unsuccessful defense than by giving the injunction card back.

    1. 4.1

      We already have up to trebled infringement damages, and attorney fees, for bad defenses. eBay does not preclude injunctions for patent owners competitively harmed by infringers. Congress overruling eBay is not going to happen because many large companies will argue that the patent trolls bringing most of their lawsuits would be the main beneficiaries, and that injunctions granted trolls will deprive customers of products and new product features, since the trolls do not provide either. Also, eBay was not inconsistent with the patent statute language.

      1. 4.1.1

        Re the latter, 35 U.S.C. 283 states that patent infringement injunctions “may” be granted “..in accordance with the principles of equity..” [which general principles of equity the Sup. Ct. said it was applying in eBay.] An automatic injunction in every winning patent case was not statutory even before eBay.

          1. 4.1.1.1.1

            Also, a “presumption of irreparable harm” means damages that cannot be compensated for by money. No patent troll or other non-practicing, non-selling, entity has any.

            1. 4.1.1.1.1.1

              The circular counter-argument is that patent rights include the right to obtain an injunction against infringement. Therefore, refusing to grant an injunction irreparably harms the right to obtain an injunction.

            2. 4.1.1.1.1.2

              Damages…

              To what specific right?

              Hint: a patent is not a per se right to MAKE anything.

              Paul – your emphasis on manufactured items is a supreme example of MISinformation.

              For shame.

        1. 4.1.1.3

          Additionally, long before eBay, the Supreme Court instructed that presumptions of irreparable harm are “contrary to traditional equitable principles.” Amoco Prod. Co. v. Village of Gambell, Alaska, 480 U.S. 531, 544-45, 107 S. Ct. 1396, 1404 (1987) (reversing a preliminary injunction enjoining oil exploration activities because the Ninth Circuit presumed oil exploration would harm the environment but there was evidence in the record that the specific exploration method would not do so). Surprisingly, during the time that the Federal Circuit permitted a presumption of irreparable harm for patent infringement, it never addressed Amoco. See generally, Annotated Patent Digest § 32:64 Questions Regarding Legality of the Presumption.

      2. 4.1.2

        Be aware of (and beware of) the fallacy of “must make” and that patents are somehow other than negative rights.

  12. 3

    I’m not even sure congress can do that. Interesting to see if they tried. Anyone know of any instances where the gov puts remedies in the form of blocking actions and presuming harm etc. in other contexts of civil matters where it does so outside of the equity paradigm? And before anon comments that equity like tots solves this problem, I and the courts simply disagree with him, that’s not historical practice, and it makes no sense to have such happening in other equitable situations.

    1. 3.1

      Sure Congress can do it. As noted in the Twitter thread, what’s proposed here is basically just the patent equivalent of the Trademark Modernization Act. Outside of IP, there’s also a statutory provision some folks are familiar with called the bankruptcy automatic stay. I think if Congress can do something that extreme, then simply adjusting the equity analysis for patent injunctions is NBD. But will they do it? Of course not.

      1. 3.1.1

        “bankruptcy automatic stay”

        That’s messing around with money I’m guessing, or loan matters (money again). That is the traditional remedy other than and different from equity bruh. The generic equitable injunction, is generally related to matters of equity to be decided as a matter of equity, not law.

  13. 2

    One need not abrogate eBay, as much as recognize and walk through the proper analysis of the existing directions as provided by Congress (understanding BOTH the nature of the patent right being a negative right AND that the first order of equity is to make the transgressed as whole as possible).

    IF you are given that patent infringement has occurred, it is NOT a matter of “presumption” that an injunction should follow, but merely that as a matter of understanding the principles of equity, that the found-injured should be made as whole as possible TO THE RIGHT TRANSGRESSED.

    See 35 U.S. Code § 283 – Injunction (emphasis added)

    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.

    1. 2.1

      I wish I could find the briefs online. I think this was pretty close to the patentee’s argument to the Supreme Court in eBay, and it didn’t prevail. The patentee argued that under equitable principles and historical practice, injunctions issued most of the time in patent cases because of the nature of the patent right. Regardless of whether it’s fair to call that practice a special presumption for patents, that’s how it’s always been, it makes sense, and that was all the Federal Circuit was doing before 2006–or so the argument went if I remember it correctly. This argument didn’t prevail. Instead the Supreme Court gave us 4 factors and concurring opinions suggesting that NPEs should have a tougher time than others getting injunctions.

      1. 2.1.1

        dcl,

        My view does not require ANY “de facto” choice (as may have been p00rly argued), and very well accompanies the provided Four Factors analysis — as long as what a patent actually is IS understood, and just what the controlling principles of equity ARE (hint: treating “injunction” as an “Atom Bomb” of remedy as may generally apply in circumstances of equity VIOLATES the shared power of Congress to the Judicial Branch.

        One MUST recognize that any shared authority across the branches is STRICTLY construed, and the words of Congress (specifically, “ to prevent the violation of any right secured by patent,) is controlling as to the use of that shared authority.

        Sadly, the Efficient Infringer and other
        H
        A
        T
        E
        R
        S
        of patent rights lack command of both Con law and patent law.

    2. 2.2

      “but merely that as a matter of understanding the principles of equity, that the found-injured should be made as whole as possible TO THE RIGHT TRANSGRESSED.”

      You’re presuming too much in “the right” tho. You have too much presumed at the outset. But it might be nice for congress to clarify that for you.

      1. 2.2.1

        You are absolutely correct. One must first define patent rights before discussing how to secure them. Some people won’t even entertain the notion that patents are not what they declare them to be, and that anyone that disagrees (e.g., SCOTUS) simply doesn’t understand patent law.

        1. 2.2.1.1

          And some refuse to recognize that the Supreme Court does get patent law wrong BECAUSE THEY DON’T understand what patents are.

          Feel free to stick to your Dred Scott mindset, and let me know which State attorney oath you have taken.

          1. 2.2.1.1.1

            “BECAUSE THEY DON’T understand what patents are.”

            According to patent attorneys (lol).

            “I have done no such thing, 6.”

            “What then is it in my view that YOU think that is ‘too much presumed?’”

            We’ve discussed this a thousand times man. You presume too much in that you think that the right to exclude is inviolable and 100% enforceable (rather than being at least partially transgressable with the possibility of monetary compensation). This however is analogous to the right to exclude people from your physical land property which of course is entirely transgressable.

            1. 2.2.1.1.1.1

              Your attempted point is unclear.

              Are you saying that trespass (to land) is fully analogous to trespass of the right to exclude?

              You are aware that land is a “positive” item while patent rights are purely a “negative” item, right?

            2. 2.2.1.1.1.2

              Let me repeat myself for you without the confusing part:

              “We’ve discussed this a thousand times man. You presume too much in that you think that the right to exclude is inviolable and 100% enforceable (rather than being at least partially transgressable with the possibility of monetary compensation).”

              1. 2.2.1.1.1.2.1

                Criminy…

                Your comment is awaiting moderation.

                March 24, 2022 at 5:31 pm

                And again 6, – I make no such presumption.

                I have put forth the nature of the right involved and the principles of equity.

                All that you have done is asserted an unsubstantiated opinion.

                I have the far better position.

      2. 2.2.2

        You’re presuming too much in “the right” tho

        I have done no such thing, 6.

        What then is it in my view that YOU think that is ‘too much presumed?’

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