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On 'Patent Trolls' and Injunctive Relief
I find it rather ironic that at the same time I was speaking on the subject of 'Patent Trolls' at the Patent Strategies 2006 conference in New York, in Washington, DC, the Su-preme Court was deliberating this very topic in connection with eBay's appeal of an injunction granted to MercExchange by the U.S. Court of Appeals for the Federal Circuit. 'The long-anticipated eBay case gets to the heart of the debate over so-called patent trolls ' companies that obtain patents only to license them, often using the threat of an injunction to extract a high price from infringers.' Woellert, L.: eBay Takes on the Patent Trolls. Business Week, March 30, 2006. One of the arguments that eBay made was that non-practicing inventors, quaintly nicknamed 'patent trolls,' should not be entitled to an injunction as a matter of course. This suggestion, however, seems to fly in the face of the Constitution, patent law, and common sense. Here are 10 reasons why injunctive relief should not be tied to practice of an invention:
1) 'The Congress shall have power ' To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries ' ' (U.S. Constitution, Article I, '8.) The language of the Constitution guarantees 'the exclusive right' (ie, right to exclude by getting an injunction) to authors and inventors without qualifying that these authors should sing their own songs if they are song writers, play their own music if they are composers, act in their own plays if they are playwrights, or that inventors should build and sell their own inventions. Just as it would be absurd to put such limitations in copyright law by tying the exclusive right of authors to the performance of their creative works, so it is equally absurd in patent law to tie injunctive relief to the practice of an invention. Moreover, it would be unconstitutional.
2) The law states that a patent secures a right of the patentee to exclude others from using, making, selling, or importing the patented invention (35 CFR '271). The emphasis is on others. It is inconsequential in the eyes of the law whether or not the inventor practices the patented invention. To tie injunctive relief to the practice of an invention has no basis in law.
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.
Removing Restrictive Covenants In New York
In Rockwell v. Despart, the New York Supreme Court, Third Department, recently revisited a recurring question: When may a landowner seek judicial removal of a covenant restricting use of her land?