Patent Validity
November 1, 2011
The Federal Circuit Waves Good-bye to the Presumption of Irreparable Harm for Patent Injunction Requests
The Federal Circuit joined the Ninth Circuit and the Second Circuit in deciding that the Supreme Court’s Ebay decision rejects the presumption of irreparable harm in patent infringement cases. This presumption is employed by some district courts when determining whether an injunction is suitable. Before Ebay, the Federal Circuit generally followed the rule that “a permanent injunction will issue once infringement and validity have been adjudged, absent a sound reason to deny relief.” Further, in the context of preliminary injunctions, the Court applied “an express presumption of irreparable harm upon a finding that a plaintiff was likely to succeed on the merits.” In Ebay, the Supreme Court stated the patentee must show: it suffered irreparable injury, the remedies at law are inadequate to compensate the injury, considering the balance of hardships an equitable remedy is warranted, and public interest is not disserved by the injunction.
October 22, 2010
Can I Really Be Infringing a Patent if I Did This Before the Inventor Did?
Counterintuitive though it may be, the answer is “yes.” While the American patent system is called a “first to invent” system (unlike the "first to file" systems in almost every other country), that description applies only to those who apply for patents on their inventions. Those who pioneer a new technology but do not seek to patent it may be unpleasantly surprised to find that someone else is able to come along later, patent the same technology, and even sue the earlier user for infringement. This helps explain why some companies engage in “defensive patenting” and why others publish inventions for the purpose of putting them in the public domain.
September 27, 2010
My State Bar Presentation on Patentable Subject Matter After Bilski v. Kappos
On Wednesday, I gave a presentation by conference call to the California State Bar’s Patent Standing Committee. I provided my analysis of the recent Supreme Court decision in Bilski v. Kappos and some predictions about the future consequences of that decision and about the issues left open by the Court. In Bilski, the Supreme Court held that the Federal Circuit’s “machine or transformation” test was not the only way to identify patentable subject matter – but the Court failed to provide a definitive test for patentability.
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