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Patent Strategy Questions Raised By the eBay Decision
The effect of the Supreme Court's May 2006 opinion in eBay v. MercExchange is already visible in the world of intellectual property litigation. A handful of subsequent district court opinions relating to damages and permanent injunctive relief for patent infringement have been handed down with outcomes substantially outside of what would have normally been expected less than even a year ago, using the eBay decision as precedent. Although the true and long-lasting effect of this decision on litigation remains to be seen, its directional influence is clear. However, what is unclear is the effect that eBay will have on real-world intellectual property management and investment. The appropriate manner in which to react to these recent changes in the litigation realm is currently an area of much discussion by corporate IP departments, patent licensing and enforcement companies (P-LECs) and financiers.
In the unanimous eBay decision, the U.S. Supreme Court held that a plaintiff is not automatically entitled to a permanent injunction simply by proving infringement by the defendant. Prior to this, an automatic injunction was the de facto standard in the district courts, which granted injunctions in all but extraordinary circumstances. Instead, the Court affirmed a four-factor test to assess the appropriateness of a permanent injunction: 1) irreparable injury; 2) inadequacy of remedies at law; 3) balancing of hardships; and 4) the public interest. Because an analysis based on this framework requires some balancing of equities, in practice the decision is usually made by the presiding judge and not the jury. The concurring opinions issued in the eBay opinion address additional issues of importance to the business world. These relate to injunctions and P-LECs, university research, and business method patents.
Why So Many Great Lawyers Stink at Business Development and What Law Firms Are Doing About It
Why is it that those who are best skilled at advocating for others are ill-equipped at advocating for their own skills and what to do about it?
Bankruptcy Sales: Finding a Diamond In the Rough
There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.
The DOJ's Corporate Enforcement Policy: One Year Later
The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.
A Lawyer's System for Active Reading
Active reading comprises many daily tasks lawyers engage in, including highlighting, annotating, note taking, comparing and searching texts. It demands more than flipping or turning pages.
Blockchain Domains: New Developments for Brand Owners
Blockchain domain names offer decentralized alternatives to traditional DNS-based domain names, promising enhanced security, privacy and censorship resistance. However, these benefits come with significant challenges, particularly for brand owners seeking to protect their trademarks in these new digital spaces.