Is it time for Congress to overturn eBay v. MercExchange (2006) and create a presumption that an injunction will follow a determination of patent infringement?
— Dennis Crouch (@patentlyo) March 23, 2022
Is it time for Congress to overturn eBay v. MercExchange (2006) and create a presumption that an injunction will follow a determination of patent infringement?
— Dennis Crouch (@patentlyo) March 23, 2022
Wow, around 46% allegedly said no. I find that hard to believe.
Do you have some reason to believe that the self-selected group of survey participants would have a different view on injunctions?
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.
Social Media Platforms Say Wishing Death To Others Violates Policies
link to npr.org
See 11.1
Unless its a NaZiLoL.
so 6 – let me give you another shot:
(see link to patentlyo.com below )
Whose “NaZiLoL“… ?
Putin’s?
Leftist’s (they get to determine who the “nazis” are).
Putin is a Leftist?
link to salon.com
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.
No way 6 — Leftists simply do NOT have that type of didactic control of the narrative.
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.
It’s been about a decade now that I gave the Prof. all the advice he ever needed on making this a “good ecosystem.”
Sure, what this blog really needs are MORE glibertarian dominionist patent-huffing
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like the Bobbsy Twins here.
Riiigght.
“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.
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.
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.
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.
One of the problems with fanaticism is that it cannot be self-diagnosed, and contrary views are never examined-only dismissed as wrong.
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).
Why do you think I was talking about you?
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).
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
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.
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.
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.
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?
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.
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.
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.
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.
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
try reading 35 USC 283.
try: link to patentlyo.com
you: greater than not off.
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
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.
offering…
products…?
And you want to laugh at others?
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you are.
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.
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.
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.
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).
“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.
The irony is stultifying.
Horrific indeed.
NO. most lawsuits are by trolls. they should NEVER get an injunction. At best, damages.
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.
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.
See above.
(repeating your nonsense did not make it any better)
“ It simply does not matter who brings a suit to enforce the fully alienable right”
LOL
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.
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.
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?
Both of your points at excellent, xtian.
Some simply do not “get” why there can NOT be a working requirement.
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.
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.
“proportionality is fundamental to justice and ethics.”
WHOSE ethics?
(not an easy question, mind you)
“WHOSE ethics?”
People who aren’t patent attorney’s ethics bro. Also people who don’t have OCPD.
Rather misses the point, eh 6?
“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.
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.
See 2.1.1 — your statement here is inapt in consideration of the actual nature of the transgressed rights involved at point.
Citing to your own assertions to establish the “actual nature” of patent rights? Have you considered switching from commentary to comedy?
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.
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”).
Hit a filter…
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March 24, 2022 at 5:27 pm
Where else in the main body of the Constitution is the word “right” used?
“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?
In other contexts would not be patents.
You asking “is that all you got” when YOU have even less is a bit gouch, eh?
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.
“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.