Subject: Re: The term "intellectual property" considered useful
From: Seth Johnson <>
Date: Sun, 28 May 2006 05:38:38 -0400

The case is a resounding rebuke against the general principle
approach ("that courts will issue permanent injunctions against
patent infringement absent exceptional circumstances") applied by
the Federal Court of Appeals.

They treat that general principle for remedies as arising from
treating patents as having "the attributes of personal property
[including] the right to exclude others from making, using,
offering for sale, or selling the invention" and contrast, and
dismiss, that approach against the four factor equity test.


Thomas Lord wrote:
> Regarding eBay Inc v. MercExchange L.L.C.
> David H. Lynch Jr. wrote:
>  > Regardless - and I believe in the majority opinion the court
>  > made it clear that patents as property are a useful fiction,
> The opinion of Justices Kennedy, Stevens, Souter, and Breyer has
> some encouraging (and some discouraging) stuff in it but nothing
> at all like what you say (if we read your words as what they
> usually mean vs. what we can kind of guess you mean).
> Rather than calling "patents as property [.... a] fiction" it
> says that, regarding the question of injunctive relief, patents
> are not a *special* form of property.
> I'm encouraged and discouraged by J's Kennedy, Stevens, Souter,
> and Breyer when they go a little out of their way to acknowledge
> the existence of patent trolls as a special problem.  ("Patent
> troll" is not their words, of course.)  They *link this issue*
> to issues close to business method and software patents.  They
> *almost* sound like RMS when they write:
>        "In cases now arising trial courts should bear in mind
>        that in many instances the nature of the patent being
>        enforced and the economic function of the patent holder
>        present considerations quite unlike earlier cases. An
>        industry has developed in which firms use patents not as
>        a basis for producing and selling goods but, instead,
>        primarily for obtaining licensing fees. [....]
>          For these firms, an injunction, and the potentially
>        serious sanctions arising from its violation, can be
>        employed as a bargaining tool to charge exorbitant fees
>        to companies that seek to buy licenses to practice the
>        patent. See ibid.  When the patented invention is but a
>        small component of the product the companies seek to
>        produce and the threat of an injunction is employed
>        simply for undue leverage in negotiations, legal damages
>        may well be sufficient to compensate for the infringement
>        and an injunction may not serve the public interest."
> So, from the free software movement perspective, they have the
> gist of some important logic and all that remains is to fill in
> the gaps that show why even damages are unreasonable.  (Hint: in
> these "cases now arising" the foreseeable conjunction of
> unavoidable damage still adds up to a de facto "injunction" to
> not do anything at all.)
>  > and that when patent holder rights conflict with the public interests,
>  > the personal property analogy may be abandoned.
> You deeply misunderstand something.
> The issue before the court concerns injunctive relief ("stop
> doing that!" orders) arising out of plaintiff's property rights.
> The court is saying that *for all _other_ forms of property* the
> public interest is a limit on injunctive relief -- and patents
> are no exception.
> It's not a property *analogy*.  That public interest element is
> inherent in *all forms of property*.
>  >     My specific analysis may be incorrect.
> It is.
> -t


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