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   USPTO PARTNERS WITH OPEN SOURCE COMMUNITY
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   Author  Topic: USPTO PARTNERS WITH OPEN SOURCE COMMUNITY  (Read 20861 times)
eric stasik
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Re: USPTO PARTNERS WITH OPEN SOURCE COMMUNITY
« Reply #45 on: May 24th, 2006, 3:29am »
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on May 22nd, 2006, 10:38pm, Cibola wrote:
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?
 

 
The District Court first argued that an injunction under the four factors was not an equitable remedy because as MerExchange did not practive the invention, it did not suffer "an irreparable injury": one of the four factors.
 
The SCOTUS put paid to this, so it seems that the District Court judge will find it more difficult to refuse a permanent injunction. There is some argument that the failure to award an injunction along with damages amounts to compulsory licensing - which is exceedingly rare.  
 
In my view, eBay gained the leverage of time to work out a settlement. The decision by the SCOTUS was, as typical of many of the Roberts' Court - decided on a very narrow basis designed to create consensus. It doesn't really change the calculus IMHO.  
 
Regards,
 
Eric Stasik
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Re: USPTO PARTNERS WITH OPEN SOURCE COMMUNITY
« Reply #46 on: Jun 25th, 2006, 8:42am »
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The eBay district court stated:  The defendants next [after failing at noninfringement] argue that there was evidence adduced at trial proving that the plaintiff is willing to license or sell its patents. On this point, the defendants are correct.
 
The district court concluded on the irreparable harm presumption section:  In the case at bar, the evidence of the plaintiff's willingness to license its patents, its lack of commercial activity in practicing the patents, and its comments to the media as to its intent with respect to enforcement of its patent rights, are sufficient to rebut the presumption that it will suffer irreparable harm if an injunction does not issue.
 
Failure to practice the invention was not the prime factor listed by the district court in rebutting the presumption of irreparable harm.  Willingness to license was.
 
The eBay district court cited to ED Va case Odetics for the "four factors," which  in turn cited to the Weinberger case, which was NOT a permanent injunction case and which does NOT enumerate four factors for anything, including for a permanent injunction.  The eBay Supreme Court decision also cites to the Weinberger case for the four factors.
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