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   Author  Topic: USPTO PARTNERS WITH OPEN SOURCE COMMUNITY  (Read 20467 times)
eric stasik
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Re: USPTO PARTNERS WITH OPEN SOURCE COMMUNITY
« Reply #40 on: May 22nd, 2006, 5:43am »
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Cibola wrote "eBay won the case before the Supreme Court, illustrating that there is not a big risk in telling whoppers to the Supreme Court."
 
It is too vague to say that "eBay won." The matter in front of the SCOTUS was very narrow - whether or not the CAFC's "general rule" of awarding a permanent injunction automatically absent "exceptional circumstances" was correct as a matter of law. The SCOTUS ruled that the CAFC erred as a matter of law and that the "general rule" should not replace the traditional four-factor test used by U.S. courts of equity.  
 
Yeah, the decision helps eBay in settlement negotiations with MercExchange - for the moment. It seems to me (and to the SCOTUS) that the District Court was wrong in denying the injunction based in the first place. In all likelihood, the District court will reverse itself and award MercExchange the injunction it deserves.  
 
But my guess is that eBay and MercExchange will settle for some fractional multiple of $25m before the District Court has a chance to take any action. After seeing what happened to the hardheads at RIM, eBay executives should be a little less emotional in their evaluation of business risk.  
 
/Eric Stasik
 
P.S. (I wrote more about this in my news entry for May 16th www.patent08.com.)
« Last Edit: May 22nd, 2006, 5:44am by eric stasik » IP Logged

eric stasik
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Cibola
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Re: USPTO PARTNERS WITH OPEN SOURCE COMMUNITY
« Reply #41 on: May 22nd, 2006, 10:38pm »
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Of eBay's whopper, Isaac had already noted:
 
 We agree completely about the cite to the Q+W paper.   There is simply no excuse for citing 97% number.  In fact even citing the 85% number is inexcusable.   Further the line of argument implying that a high issue rate means that the patent at hand is suspect is bogus anyway given the successful defense in court.  
 
If JimIvey has any evidence to support what eBay said about patent grant rate, let him provide it.  Otherwise, let us agree it was an untrue statement, that could have been demonstrated untrue at the time made.  
 
Of --that eBay did in fact tell a whopper to the SCt and that the SCt relied on that whopper in its opinion-- I disagreeertion is that eBay did state something that was untrue.  I did not state the SCt relied on it.   As an aside, for a violation of RPC 3.3 there is no requirement that the tribunal rely on the misstatement, only that it be a false statement of material fact or law.  
 
Of  --Drawing a generalized conclusion of probabilities (which is exactly what risk is) from a single trial is ... well, ludicrous--, there is an issue of both the bad act itself and the scope of knowledge of the bad act.  For example, as a hypothetical, the state's failure to prosecute someone who murdered the DA on the court house steps and was immediately caught, all while being televised, would have dramatic impact, even if the event was one time, because it was publicized and was perceived to be bad. On the other side of the coin, in many states, about 19 out of 20 disciplinary actions against lawyers are not acted upon, and the complaint sealed from public inspection (or comment by the complainant).   One might get the idea, from the frequent dismissal of many cases, that everything was fine.   The mistake of eBay was fairly well-publicized, at least in blogs and things and a few other places, before the decision.
 
Of Eric's comment, if analysis of the 4-factor test generally leads to patentee getting an injunction (CJ Roberts, but disputed by the Kennedy group), how much leverage did eBay get?  Some dollars off in a settlement?  How does this impact future injunction cases?
 
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Isaac
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Re: USPTO PARTNERS WITH OPEN SOURCE COMMUNITY
« Reply #42 on: May 23rd, 2006, 8:47am »
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I'm not sure how it will affect future cases.  Quite frankly I find some of the language bandied about by the district court and the Supreme Court quite troubling.  The idea that there are disfavored patents and that the validity of a patent might be "suspect" even after litigation which almost certainly touched on validity seems particularly ominous.   Also some members of the court seemed to embrace the idea that some patentees might be trolls and that trolling should be taken into account.   Given Congress' inability to get agreement on that issue, it seems to me that at least one industry segment ought to be well pleased while the other segments are probably horrified.  
 
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Isaac
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Re: USPTO PARTNERS WITH OPEN SOURCE COMMUNITY
« Reply #43 on: May 23rd, 2006, 10:25am »
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I agree with your comments.
 
The following text in the concurring opinion of Justice Kennedy should be noted:
 
In addition injunctive relief may have different consequences for the burgeoning number of patents over  
business methods, which were not of much economic and legal significance in earlier times. The potential vagueness and suspect validity of some of these patents may
affect the calculus under the four-factor test.
 
The concurring opinion was one vote away from being a majority opinion.
 
Keep in mind, the issue of a permanent injunction comes up after there is a determination of validity.  To refer to a patent, determined to be valid, as possibly of "suspect validity" is interesting.
 
To return to a point JimIvey raised, I do think the "suspect validity" text in the concurring opinion does derive in part from reliance on comments about "patent grant rate" and reexamination which appeared in the eBay brief.  Argumentation is one thing, but a false statement of a material fact is something else.
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Isaac
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Re: USPTO PARTNERS WITH OPEN SOURCE COMMUNITY
« Reply #44 on: May 23rd, 2006, 11:34am »
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on May 23rd, 2006, 10:25am, Cibola wrote:
To return to a point JimIvey raised, I do think the "suspect validity" text in the concurring opinion does derive in part from reliance on comments about "patent grant rate" and reexamination which appeared in the eBay brief.  Argumentation is one thing, but a false statement of a material fact is something else.  

 
I believe the suspect validity remark was made with respect to business method patents (whatever they are) and is not applicable to all patents.   If so, then it seems unlikely that the Q+W study is the source of the disdain.
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Isaac
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