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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.
In z4 Technologies v. Microsoft Corporation, heard before the traditionally pro-plaintiff Eastern District of Texas, the District Court issued an opinion in June 2006 denying z4's motion for a permanent injunction. It found that z4 would not suffer irreparable harm and also referred to the Justice Anthony Kennedy's concurrence that suggested a permanent injunction may be inappropriate in cases where the patented technology only relates to a small portion of the infringing product. In this case, the running royalty the court assigned for Microsoft's future use of the patented invention was equal to the reasonable royalty the jury awarded for past damages, simply applied to future sales. It is notable that the term of this compulsory license was a short one; as part of its argument against a permanent injunction, Microsoft cited the fact that the subject technology had already been designed out of its next generation product, which was due for release within the next year.
Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
Legal Possession: What Does It Mean?
Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession," possession is "the fact of having or holding property in one's power." That power means having physical dominion and control over the property.
The Anti-Assignment Override Provisions
UCC Sections 9406(d) and 9408(a) are one of the most powerful, yet least understood, sections of the Uniform Commercial Code. On their face, they appear to override anti-assignment provisions in agreements that would limit the grant of a security interest. But do these sections really work?