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December 23, 2019


Appears very helpful so far as it goes.

On the question of injunctions, the UK statute i9s essentially the same as in the US and leaves grant of injunctions to the discretion of the court on principles of equity since an injunction was originally an equitable remedy. Howevr, UK courts routi9nely grant injunctions unless there are compelling reasons otherwise. Why the difference in the US?

Courts routinely granted permanent injunctions to prevailing patentee plaintiffs prior to eBay v. MercExchange, where the Supreme Court was convinced by some legal academics that "trolls" were abusing the system. (Ignorance is certainly not bliss, or at least not bliss-producing.) There is an anecdote that when the parties went back to the district court on remand the judge said (in chambers) that he had read the Supreme Court's decision and the Court's instructions on how to apply the law properly, and said that unfortunately that was exactly what he had done in the first place.

Merry/Happy Christmas to you and yours.

It has been routinely noted that the Desired Ends of the Court have dictated that trying to follow their actual Means is a fruitless exercise.

So too, with "principles of equity."

Remember, we are mostly talking about cases in which a patent has been found both to be not invalid and infringed.

First principle of equity: make the aggrieved as whole as possible.

Second principle of equity: recognize the context of the right transgressed.

Instead, the Court has reached back to its own "principles" and declared that ENTIRELY OUT OF CONTEXT, injunctions are the harshest form of equitable relief, and thus some other form of relief would be a better "default."

Add to this oversized Nannyism, the Court's general aversion to patents (a REPEATED historical aversion - recalling the self-anointed moniker of "The only valid patent is one that has not yet appeared before us"), and it is clear to see that we have yet another instance of the Court crafting patent law to how they want patents "to work."

"UK courts [routinely] grant injunctions unless there are compelling reasons otherwise. Why the difference in the US?"

To be fair, it is not really clear that the US *is* different in this respect. If you go looking for district court orders following a patent infringement case, in which the patent has been found both valid and infringed, but in which an injunction is not granted, they actually tend to be fairly thin on the ground, and I cannot see evidence that the incidence of no-injunction judgments has increased post-Ebay relative to pre-Ebay.

Still and all, the *law* used to be that an injunction was presumptively favored, whereas the *law* is now that the patentee actually has to prove up irreparable harm and inadequate remedy at law. This bill would put things back to a situation in which the defendant (opposing an injunction) has to prove up a *lack* of irreparable harm or a *lack* of adequate remedy at law.

In other words, it is more a case of who has to pay the lawyers more, the plaintiff or the defendant. It is entirely possible that the incidence of no-injunction outcomes will not actually change if the bill were to pass (just as it is not clear that the incidence changed on account of Ebay v. MercExchange).

"In other words, it is more a case of who has to pay the lawyers more, the plaintiff or the defendant."

I cannot get there from here.

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