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The Los Angeles Times is wrong in the discussion of the Supreme Court case, eBay v. MercExchange

In an editorial on the Supreme Court case eBay v. MercExchange, Los Angeles Times [May 17, B12] fixed:

[A]n short appeals [the Court of Appeals for the Federal Circuit, “CAFC”] ruled that MercExchange was automatically entitled to an injunction against eBay.

In a unanimous ruling, the justices disagreed not only with the appeals court but with nearly 100-year-old Supreme Court precedent on patent law. That case, which grew out of a dispute over paper bag manufacturing techniques, held that an injunction was required in almost all cases of patent infringement. disproportionately rich licensing deals.

Of the “nearly 100-year-old” Supreme Court case, Justice Thomas wrote in the unanimous opinion on eBay:

Tea [district] The court’s categorical rule is also in tension with Continental Paper Bag Co. v. Eastern Paper Bag Co., 210 US 405, 422-430, 28 S. Ct. 748, 52 L. Ed. 1122, 1908 Dec. Comm’r Pat. 594 (1908), which rejected the contention that a court of equity does not have jurisdiction to grant injunctive relief to a patent owner who has wrongfully refused to use the patent.

Thomas’ opinion did not disagree with the Continental Paper case, contrary to what the Los Angeles Times said.

The CAFC did not state that MercExchange was automatically entitled to a permanent injunction. The CAFC went through the traditional 4-factor analysis to grant a permanent injunction and disagreed with the district court’s findings. The CAFC was wrong to suggest that permanent injunctions will be issued in the absence of exceptional circumstances.

The Times editorial also noted:

The patent office is also challenging some MercExchange patents, pointing to a fundamental issue that the Supreme Court did not address. The system generates too many bad patents, particularly when it comes to business methods. Proposals that would significantly strengthen
the process have been bottled up in Congress. Now that the Supreme Court has begun to settle the patent issue, lawmakers must finish the job.

On the subject of the review, he had written in the February 2006 issue of Intellectual Property Today:

One of the reasons eBay provided the Supreme Court on the public interest factor in the 4-factor injunction test was the uncertain status of the validity of business method patents. In support, eBay’s report noted that, subsequent to the district court’s decision, the PTO had declared invalid claims of US$5,845,265. [In re-exam 90/006,956, filed by eBay under 37 CFR 1.510 on March 5, 2004, after the district court decision of August 6, 2003 in 275 F.Supp.2d 695, the PTO issued a non-final Office Action (signed on Feb. 11, 2005 but mailed March 24,
2005) rejecting claims 26-29 under 102(e) and claims 1-25 under 103 over US 5,664,111, the same art found not invalidating in the CAFC decision of March 16, 2005 (401 F.3d 1323).] To suggest that this was a more widespread problem, the eBay report stated that 74% of the time the PTO determines that “the patent is invalid” or
restrict claims. eBay’s report failed to mention that reexaminations occur for only a fraction of a percentage of issued patents. The eBay report also cited Cecil Quillen, 11 Fed. cir. BJ 1, 3 to “estimate the patent approval rate by the PTO at 97%”. Unfortunately, Quillen and his co-author Ogden Webster never
estimated the patent approval rate to be 97%. Rather, they placed the grant rate in the range of 80% to 97%, with the upper limit of 97% invalidated by their recognition in footnote 17 that a patent can be issued from both a continuing application and a corresponding one. main request. Although not mentioned in the
In the eBay report, Quillen and Webster corrected their opinion on the estimates of the subsidy rate number to the following year (12 Fed. Cir. BJ 35 (2002), discussed at 86 JPTOS 568 (2004)). In eBay’s report, the 97% number is neither a true representation of what Quillen and Webster said nor an accurate statement of the
patent grant fee at the PTO.

An earlier story in the Los Angeles Times had said:

The 9-0 decision in the closely watched case reversed a federal decision
court ruling that such judges should almost always order a suspension of ordinary business whenever a company is found to have infringed a valid patent.

The problem here is that there were only 8 judges voting on eBay v. MercExchange.

The Los Angeles Times was wrong on many of the facts in the eBay case, just as it was wrong on issues surrounding the embryonic stem cell discussion. [Ebert, Lawrence. “Los Angeles Times Article Way Off Base on Stem Cell Issues.” EzineArticles 12 April 2006]

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