This case involved a patent for deep-fryers with a well insulated skirt. After a trial and a jury verdict for the patentee, several issues were raised on appeal. A few of particular interest are mentioned below.
More on the Knowledge-of-the-Patent Requirement for Inducement. Knowledge of the patent need not be shown if it can be shown that the defendant actively disregarded a known risk. In DSU Medical, the Federal Circuit provided the standard for the intent needed for a showing of inducement, including that such a showing necessarily includes knowledge of the patent. “This court’s opinion [in DSU Medical] did not, however, set out the metes and bounds of the knowledge-of-the-patent requirement.” (p. 22.) The court had stated “knew of the patent” in DSU Medical, not “knew or should have known,” so the defendant argued that lack of knowledge, regardless of whether the lack of knowledge may have been deliberate. “’[S]pecific intent’ in the civil context is not so narrow as to allow an accused wrongdoer to actively disregard a known risk that an element of the offense exists.” (p. 23) In this case, “the record shows no direct evidence that [the defendant] had actual knowledge of the patent before” a certain date. The court concluded that direct evidence of knowledge of the patent is not necessary to establish inducement. “[A] claim for inducement is viable even where the patentee has not produced direct evidence that the accused infringer actually knew of the patent-in-suit. This case shows such an instance. The record contains adequate evidence to support a conclusion that [the defendant] deliberately disregarded a known risk that [the plaintiff] had a protective patent.” (p. 25.) Several factors contributed to this conclusion, including the fact that the defendant failed to inform the attorney it hired to conduct a right-to-use study that it had copied the product at issue. The court also noted that “[t]his opinion does not purport to establish the outer limits of the type of knowledge needed for inducement.” (p. 26.)
Claim Construction for Preliminary Injunction and the Law of the Case. “This court’s prior affirmance of the district court’s preliminary injunction order does not make the district court’s claim construction in its 1999 opinion the law of the case.” (p. 8.)
Claim Construction and the Use of Different Terms in the Specification. “This court often assumes that different terms convey different meanings. That assumption, however, carries less weight when comparing a term in the claim to a term in the specification, especially where, as here, the specification only describes one embodiment.” (p. 10.)
Trial Procedure Note. Defendant sought JMOL after the jury verdict concerning prosecution history estoppel, but had not moved on this ground at the close of evidence. This procedural difference lead to a difference in the standard of review: “If an issue is not raised in a previous motion for a directed verdict, however, this court’s review is highly deferential.” (p. 13.)
General Verdict Rule. “The record therefore does not clearly indicate that the jury found damages based on inducement alone, or based on direct infringement alone, or both. The general verdict rule requires that the only way this court can affirm in such a circumstance is by determining that the jury’s finding of both direct infringement and inducement of infringement was proper.” (p. 19.) In this case, it did find that both findings were proper and upheld the damages award.
Another Procedural Note. “Importantly, [the patentee] does not ask this court to order a new trial on willfulness. Had it asked, this court might have granted the request in light of the district court’s conclusion that the willfulness verdict could have gone either way under the Seagate test.” (p. 32.)
Friday, February 5, 2010
Monday, January 25, 2010
Therasense v. Becton (2008-1511)
The patents in this case are in the area of disposable blood glucose test strips. (Another case between the same parties was decided on the same day.) The issues were decided on summary judgment and after a bench trial. Three issues involving obviousness, inequitable conduct, anticipation and noninfringement were addressed in this opinion. A couple of points of interest are mentioned below.
Obviousness: Commercial Success Nexus. The court concluded that there should be no presumption of a nexus between the patented features and commercial success because any success could not be attributed to a single patent. The accused device embodied at least two patents. (p. 16.)
Inequitable Conduct. “The penalty for inequitable conduct is severe, as an entire patent is rendered unenforceable. Therefore it is important that courts maintain a high standard.” (p. 18.) “This is one of those rare cases in which a finding of inequitable conduct is appropriate….” (p. 18.) Attorney argument about interpretation of claims and the teachings of prior art do not amount to inequitable conduct, but not disclosing contrary statements made to the EPO and “factual assertions as to the views of those skilled in the art, provided in affidavit form” are not attorney argument. (p. 27.) Intent was found based on the importance of the withheld statements to the PTO, the applicants knowledge of them, and the credibility of the witnesses that tried to explain why they were not disclosed.
Obviousness: Commercial Success Nexus. The court concluded that there should be no presumption of a nexus between the patented features and commercial success because any success could not be attributed to a single patent. The accused device embodied at least two patents. (p. 16.)
Inequitable Conduct. “The penalty for inequitable conduct is severe, as an entire patent is rendered unenforceable. Therefore it is important that courts maintain a high standard.” (p. 18.) “This is one of those rare cases in which a finding of inequitable conduct is appropriate….” (p. 18.) Attorney argument about interpretation of claims and the teachings of prior art do not amount to inequitable conduct, but not disclosing contrary statements made to the EPO and “factual assertions as to the views of those skilled in the art, provided in affidavit form” are not attorney argument. (p. 27.) Intent was found based on the importance of the withheld statements to the PTO, the applicants knowledge of them, and the credibility of the witnesses that tried to explain why they were not disclosed.
Boehringer v. Barr Laboratories
Retroactive Terminal Disclaimer Not Effective to Avoid Obviousness-Type Double Patenting.
“[A] patentee may file a disclaimer after issuance of the challenged patent or during litigation, even after a finding that the challenged patent is invalid for obviousness-type double patenting.” (p. 10.) But a patentee cannot file a disclaimer after the earlier patent has expired. “The patentee cannot undo this unjustified timewise extension by retroactively disclaiming the term of the later patent because it has already enjoyed rights that it seeks to disclaim. Permitting such a retroactive terminal disclaimer would be inconsistent with ‘[t]he fundamental reason’ for obviousness-type double patenting, namely, to prevent unjustified timewise extension of the right to exclude. We therefore hold that a terminal disclaimer filed after the expiration of the earlier patent over which claims have been found obvious cannot cure obviousness-type double patenting.” (p. 12.)
Safe Harbor Provision Applies to All Subsequent Divisionals Provided the Examiner’s Original Demarcation of Independent Inventions Is Not Crossed. “[T]he safe-harbor provision may apply to a divisional of a divisional of the application in which a restriction requirement was entered. We note that this holding is fully consistent with the purpose of § 121—namely, to prevent a patentee who divides an application in which a restriction requirement has been made from risking invalidity due to double patenting.” (p. 20.) Upon the restriction requirement, the applicant had to file one or more divisional applications if it wanted to get a patent on the non-elected subject matter. The applicant “did so not by filing separate divisional applications on each of the inventions grouped by the examiner in the restriction requirement, but instead, by filing two successive divisionals to different combinations of the inventions identified in the restriction requirement. In doing so, [the applicant] neither violated the examiner’s restriction requirement nor risked loss of the safe harbor of § 121.” (p. 22.)
The full opinion, which includes a dissent, is here.
“[A] patentee may file a disclaimer after issuance of the challenged patent or during litigation, even after a finding that the challenged patent is invalid for obviousness-type double patenting.” (p. 10.) But a patentee cannot file a disclaimer after the earlier patent has expired. “The patentee cannot undo this unjustified timewise extension by retroactively disclaiming the term of the later patent because it has already enjoyed rights that it seeks to disclaim. Permitting such a retroactive terminal disclaimer would be inconsistent with ‘[t]he fundamental reason’ for obviousness-type double patenting, namely, to prevent unjustified timewise extension of the right to exclude. We therefore hold that a terminal disclaimer filed after the expiration of the earlier patent over which claims have been found obvious cannot cure obviousness-type double patenting.” (p. 12.)
Safe Harbor Provision Applies to All Subsequent Divisionals Provided the Examiner’s Original Demarcation of Independent Inventions Is Not Crossed. “[T]he safe-harbor provision may apply to a divisional of a divisional of the application in which a restriction requirement was entered. We note that this holding is fully consistent with the purpose of § 121—namely, to prevent a patentee who divides an application in which a restriction requirement has been made from risking invalidity due to double patenting.” (p. 20.) Upon the restriction requirement, the applicant had to file one or more divisional applications if it wanted to get a patent on the non-elected subject matter. The applicant “did so not by filing separate divisional applications on each of the inventions grouped by the examiner in the restriction requirement, but instead, by filing two successive divisionals to different combinations of the inventions identified in the restriction requirement. In doing so, [the applicant] neither violated the examiner’s restriction requirement nor risked loss of the safe harbor of § 121.” (p. 22.)
The full opinion, which includes a dissent, is here.
Therasense v. Becton (2009-1008)
The case involved a patent for electrochemical sensors for measuring glucose levels in blood. A trial was held and the jury found that the asserted claims were infringed under the doctrine of equivalents but were “invalid by reason of anticipation or obviousness.”
Jury Instructions on Anticipation Erroneous. On appeal, the patentee argued that the district court’s jury instruction on anticipation was erroneous. The jury instructions stated that “for anticipation, it is sufficient if the single reference would have informed those skilled in the art that all of the claimed elements could have been arranged as in the claimed invention.” (p. 8.) This was erroneous because “it makes sufficient, for purposes of anticipation, a prior art disclosure of individual claim elements that ‘could have been arranged’ in a way that is not itself described or depicted in the anticipatory reference.” (p. 8-9.) Anticipation requires that the “way in which the elements are arranged or combined in the claim must itself be disclosed, either expressly or inherently, in an anticipatory reference.” (p. 9.) “[U]nless a reference discloses within the four corners of the document not only all of the limitations claimed but also all of the limitations arranged or combined in the same way as recited in the claim, it cannot be said to prove prior invention of the thing claimed and, thus, cannot anticipate under 35 U.S.C. § 102.”
“The concept of ‘inherent disclosure’ does not alter the requirement that all elements must be disclosed in an anticipatory reference in the same way as they are arranged or combined in the claim.” (p. 9.) “For a claim to be anticipated, each claim element must be disclosed, either expressly or inherently, in a single prior art reference, and the claimed arrangement or combination of those elements must also be disclosed, either expressly or inherently, in that same prior art reference.” (p. 10.)
Error Harmless Because Claims Were Obvious as a Matter of Law. Despite the fact that the jury instructions on anticipation were erroneous, the error was determined to be harmless because the Federal Circuit concluded that the claims were obvious as a matter of law. {B]ecause the jury must at least have found the claims obvious,” the jury instruction on anticipation could not have changed the result.
In its obviousness analysis, the court rejected the patentee’s arguments that the invention solved a problem for which there was a long-felt need since the claims at issue were not limited to devices that solved the problem. “Because the claims are broad enough to cover devices that either do or do not solve the “short fill” problem, Abbott’s objective evidence of non-obviousness fails because it is not “commensurate in scope with the claims which the evidence is offered to support.” (p. 16.)
Jury Instructions on Anticipation Erroneous. On appeal, the patentee argued that the district court’s jury instruction on anticipation was erroneous. The jury instructions stated that “for anticipation, it is sufficient if the single reference would have informed those skilled in the art that all of the claimed elements could have been arranged as in the claimed invention.” (p. 8.) This was erroneous because “it makes sufficient, for purposes of anticipation, a prior art disclosure of individual claim elements that ‘could have been arranged’ in a way that is not itself described or depicted in the anticipatory reference.” (p. 8-9.) Anticipation requires that the “way in which the elements are arranged or combined in the claim must itself be disclosed, either expressly or inherently, in an anticipatory reference.” (p. 9.) “[U]nless a reference discloses within the four corners of the document not only all of the limitations claimed but also all of the limitations arranged or combined in the same way as recited in the claim, it cannot be said to prove prior invention of the thing claimed and, thus, cannot anticipate under 35 U.S.C. § 102.”
“The concept of ‘inherent disclosure’ does not alter the requirement that all elements must be disclosed in an anticipatory reference in the same way as they are arranged or combined in the claim.” (p. 9.) “For a claim to be anticipated, each claim element must be disclosed, either expressly or inherently, in a single prior art reference, and the claimed arrangement or combination of those elements must also be disclosed, either expressly or inherently, in that same prior art reference.” (p. 10.)
Error Harmless Because Claims Were Obvious as a Matter of Law. Despite the fact that the jury instructions on anticipation were erroneous, the error was determined to be harmless because the Federal Circuit concluded that the claims were obvious as a matter of law. {B]ecause the jury must at least have found the claims obvious,” the jury instruction on anticipation could not have changed the result.
In its obviousness analysis, the court rejected the patentee’s arguments that the invention solved a problem for which there was a long-felt need since the claims at issue were not limited to devices that solved the problem. “Because the claims are broad enough to cover devices that either do or do not solve the “short fill” problem, Abbott’s objective evidence of non-obviousness fails because it is not “commensurate in scope with the claims which the evidence is offered to support.” (p. 16.)
Friday, January 15, 2010
Schindler Elevator v. Otis Elevator
The patent in this case was for an elevator system that “recognizes a user when he or she enters an entry location of a building, then dispatches an elevator to bring the user to a destination floor based on user-specific data.” (p. 2.) At issue was the district court’s claim construction of “information transmitter” and “recognition device.” The construction imposed negative limitations that required the system to work “without any sort of personal action by the passenger,” which excluded any action “other than walking into the monitored area.” (p. 7.) The question was could the user of the elevator do anything but walk into the lobby in order to make the elevators work?
The majority determined that the user could take some personal actions in order to bring the transmitter to the recognition device, such as swiping a key card. The statements in the specification and the prosecution history that system was “hands-free,” “automatic,” and “contactless” applied after user information was transferred to the recognition device. So the user could swipe a key, but then could not push buttons to call the elevator or tell it which floor to go to. The court explained that “[e]ach time those terms are used, they modify the elevator’s ‘call entry’ operation, an operation that necessarily occurs after the information transmitter has been brought within range of the recognition device and after the transmitter has been actuated by the recognition device.” (p. 13.)
Similar statements in the prosecution history were also referring to what happens after the information has been transferred. “None of [the statements about being “hands-free”] speaks to the role a user plays in bringing a transmitter within range of a recognition device; nor was the prior art distinguished on that basis.” (p. 15.) Thus, they “do not constitute a ‘clear and unmistakable’ disavowal of personal action for the limited purpose of bringing the transmitter within range of the recognition device.” (p. 16.)
Dissenting in part, Judge Dyk agreed that the district court’s construction was too narrow but felt that the majority’s decision went too far. According to Judge Dyk, the disclaimer applied to all personal action after gaining entry into a building. “Contrary to the majority, it seems to me that the action of swiping a card to call the elevator separate from the action required to gain entry to the building is clearly within the disclaimer of both the specification and prosecution history.”
The majority determined that the user could take some personal actions in order to bring the transmitter to the recognition device, such as swiping a key card. The statements in the specification and the prosecution history that system was “hands-free,” “automatic,” and “contactless” applied after user information was transferred to the recognition device. So the user could swipe a key, but then could not push buttons to call the elevator or tell it which floor to go to. The court explained that “[e]ach time those terms are used, they modify the elevator’s ‘call entry’ operation, an operation that necessarily occurs after the information transmitter has been brought within range of the recognition device and after the transmitter has been actuated by the recognition device.” (p. 13.)
Similar statements in the prosecution history were also referring to what happens after the information has been transferred. “None of [the statements about being “hands-free”] speaks to the role a user plays in bringing a transmitter within range of a recognition device; nor was the prior art distinguished on that basis.” (p. 15.) Thus, they “do not constitute a ‘clear and unmistakable’ disavowal of personal action for the limited purpose of bringing the transmitter within range of the recognition device.” (p. 16.)
Dissenting in part, Judge Dyk agreed that the district court’s construction was too narrow but felt that the majority’s decision went too far. According to Judge Dyk, the disclaimer applied to all personal action after gaining entry into a building. “Contrary to the majority, it seems to me that the action of swiping a card to call the elevator separate from the action required to gain entry to the building is clearly within the disclaimer of both the specification and prosecution history.”
Monday, December 28, 2009
The Forest Group v. Bon Tool Company
35 U.S.C. § 292 prohibits falsely marking a product with a patent number or “patent pending.” It allows anyone to sue to enforce this provision and split the fine with the U.S. The maximum fine is “not more than $ 500 for every such offense.”
At issue in FOREST GROUP V. BON TOOL was whether that maximum fine applied on a per “decision to mark” basis or on a per article basis. The Federal Circuit concluded that it “requires courts to impose penalties for false marking on a per article basis.” (p. 14.) This of course has the potential to result in substantial penalties, and to provide an incentive for “the possible rise of ‘marking trolls’ who bring litigation purely for personal gain.” (p. 12.) However, the court also noted that the $500 figure was a maximum and so “[i]n the case of inexpensive mass-produced articles, a court has the discretion to determine that a fraction of a penny per article is a proper penalty.” (p. 13.) Moreover, the statute explicitly allows for such suits and the court mentioned several policy reasons for discouraging improper marking:
- Acts of false marking deter innovation and stifle competition in the marketplace.
- False marks may also deter scientific research when an inventor sees a mark and decides to forego continued research to avoid possible infringement.
- False marking can also cause unnecessary investment in design around or costs incurred to analyze the validity or enforceability of a patent whose number has been marked upon a product with which a competitor would like to compete. (p. 11.)
Because “[t]hese injuries occur each time an article is falsely marked,” the court determined the penalty should be applied per product in the marketplace and qui tam suits should not be discouraged.
The take away: Double check your products to make sure they aren't being marked with expired patents.
For a discussion on standing, see STAUFFER V. BROOKS BROTHERS, INC.
Wednesday, December 23, 2009
i4i v. Microsoft
This case involved an invention for editing custom XML, a markup language, in which the “improvement stems from storing a document’s content and metacodes separately.” The jury found claims infringed and not invalid and awarded $200 million. The district court added $40 million in enhanced damages plus a permanent injunction going forward. Below are excerpts concerning some of issues considered.
Claim Construction
“Because the claims themselves do not use the word ‘file’ and the specification discloses embodiments where the storage format is not a file, we conclude that ‘distinct’ does not require storage in separate files.” “In evaluating whether a patentee has disavowed claim scope, context matters.” “The statements Microsoft now plucks from the prosecution history do not ‘clear[ly] and unmistakabl[y] disavow’ storage means that are not files.” (p. 9.)
“[N]ot every benefit flowing from an invention is a claim limitation.” (p. 10)
Permissive Language Alert. “The specification’s permissive language, ‘could be edited,’ ‘can be created,’ and ‘ability to work,’ does not clearly disclaim systems lacking these benefits.” (p. 11.) As such, there were “no statements that unequivocally narrow the claims.” (p. 11.)
Review of Obviousness Limited Without a JMOL. “The extent to which we may review the jury’s implicit factual findings depends on whether a pre-verdict JMOL was filed on obviousness. In this case, Microsoft has waived its right to challenge the factual findings underlying the jury’s implicit obviousness verdict because it did not file a pre-verdict JMOL on obviousness for [certain prior art] references. … [A] party must file a pre-verdict JMOL motion on all theories, and with respect to all prior art references, that it wishes to challenge with a post-verdict JMOL. Microsoft’s pre-verdict JMOL on anticipation … was insufficient to preserve its right to post-verdict JMOL on a different theory (obviousness), or on different prior art …. Accordingly, we do not consider whether the evidence presented at trial was legally sufficient to support the jury’s verdict. Our review is limited to determining whether the district court’s legal conclusion of nonobviousness was correct, based on the presumed factual findings.” (p. 14.)
Corroboration. “[W]e hold that corroboration was not required in this instance, where the testimony was offered in response to a claim of anticipation and pertained to whether the prior art practiced the claimed invention.” (p. 18.) The court was distinguishing the corroboration requirement that applies when “any witness whose testimony alone is asserted to invalidate a patent.” (p. 18.)
Contributory Infringement. “In assessing whether an asserted noninfringing use was ‘substantial,’ the jury was allowed to consider not only the use’s frequency, but also the use’s practicality, the invention’s intended purpose, and the intended market.” (p. 25.)
Damages: Review Limited Because Microsoft Did Not File Pre-Verdict JMOL. “Although Microsoft now objects to the size of the damages award, we cannot reach that question because Microsoft did not file a pre-verdict JMOL on damages.” (p. 36.) The court would not consider whether the damages award was excessive because “Microsoft waived its ability to have us decide that question by failing to file a pre-verdict JMOL on damages. Fed. R. Civ. P. 50(a), (b).” (p. 36-37.) “Instead of the more searching review permitted under Rule 50(b), we are constrained to review the verdict under the much narrower standard applied to denials of new trial motions. This standard is highly deferential: we may set aside a damages award and remand for a new trial only upon a clear showing of excessiveness. To be excessive, the award must exceed the maximum amount calculable from the evidence.” (p. 37.) Since it didn’t, the award was affirmed, though the court suggested it might have reached a different result under the other standard of review, sufficiency of the evidence.
Permanent Injunction
Past Harm Is Relevant to Irreparable Harm. “Although injunctions are tools for prospective relief designed to alleviate future harm, by its terms the first eBay factor looks, in part, at what has already occurred.” (p. 43)
Remedies at Law. “Difficulty in estimating monetary damages is evidence that remedies at law are inadequate.” (p. 44.) Microsoft took a large percent of the market and i4i had to change its business model.
Public Interest Satisfied by Narrow Scope. “The scope of this injunction is narrow, however. It applies only to users who purchase or license Word after the date the injunction takes effect. Users who purchase or license Word before the injunction’s effective date may continue using Word’s custom XML editor, and receiving technical support.” (p. 42.) “The injunction’s narrow scope substantially mitigates the negative effects on the public, practically and economically. By excluding users who purchased or licensed infringing Word products before the injunction’s effective date, the injunction greatly minimizes adverse effects on the public.” (p. 45.)
Date Injunction Begins. The court changed the effective date of the injunction based on the evidence presented to the district court. But since this change was applied to the district court’s order, the end result is that the injunction will take effect in a few weeks of this decision.
Claim Construction
“Because the claims themselves do not use the word ‘file’ and the specification discloses embodiments where the storage format is not a file, we conclude that ‘distinct’ does not require storage in separate files.” “In evaluating whether a patentee has disavowed claim scope, context matters.” “The statements Microsoft now plucks from the prosecution history do not ‘clear[ly] and unmistakabl[y] disavow’ storage means that are not files.” (p. 9.)
“[N]ot every benefit flowing from an invention is a claim limitation.” (p. 10)
Permissive Language Alert. “The specification’s permissive language, ‘could be edited,’ ‘can be created,’ and ‘ability to work,’ does not clearly disclaim systems lacking these benefits.” (p. 11.) As such, there were “no statements that unequivocally narrow the claims.” (p. 11.)
Review of Obviousness Limited Without a JMOL. “The extent to which we may review the jury’s implicit factual findings depends on whether a pre-verdict JMOL was filed on obviousness. In this case, Microsoft has waived its right to challenge the factual findings underlying the jury’s implicit obviousness verdict because it did not file a pre-verdict JMOL on obviousness for [certain prior art] references. … [A] party must file a pre-verdict JMOL motion on all theories, and with respect to all prior art references, that it wishes to challenge with a post-verdict JMOL. Microsoft’s pre-verdict JMOL on anticipation … was insufficient to preserve its right to post-verdict JMOL on a different theory (obviousness), or on different prior art …. Accordingly, we do not consider whether the evidence presented at trial was legally sufficient to support the jury’s verdict. Our review is limited to determining whether the district court’s legal conclusion of nonobviousness was correct, based on the presumed factual findings.” (p. 14.)
Corroboration. “[W]e hold that corroboration was not required in this instance, where the testimony was offered in response to a claim of anticipation and pertained to whether the prior art practiced the claimed invention.” (p. 18.) The court was distinguishing the corroboration requirement that applies when “any witness whose testimony alone is asserted to invalidate a patent.” (p. 18.)
Contributory Infringement. “In assessing whether an asserted noninfringing use was ‘substantial,’ the jury was allowed to consider not only the use’s frequency, but also the use’s practicality, the invention’s intended purpose, and the intended market.” (p. 25.)
Damages: Review Limited Because Microsoft Did Not File Pre-Verdict JMOL. “Although Microsoft now objects to the size of the damages award, we cannot reach that question because Microsoft did not file a pre-verdict JMOL on damages.” (p. 36.) The court would not consider whether the damages award was excessive because “Microsoft waived its ability to have us decide that question by failing to file a pre-verdict JMOL on damages. Fed. R. Civ. P. 50(a), (b).” (p. 36-37.) “Instead of the more searching review permitted under Rule 50(b), we are constrained to review the verdict under the much narrower standard applied to denials of new trial motions. This standard is highly deferential: we may set aside a damages award and remand for a new trial only upon a clear showing of excessiveness. To be excessive, the award must exceed the maximum amount calculable from the evidence.” (p. 37.) Since it didn’t, the award was affirmed, though the court suggested it might have reached a different result under the other standard of review, sufficiency of the evidence.
Permanent Injunction
Past Harm Is Relevant to Irreparable Harm. “Although injunctions are tools for prospective relief designed to alleviate future harm, by its terms the first eBay factor looks, in part, at what has already occurred.” (p. 43)
Remedies at Law. “Difficulty in estimating monetary damages is evidence that remedies at law are inadequate.” (p. 44.) Microsoft took a large percent of the market and i4i had to change its business model.
Public Interest Satisfied by Narrow Scope. “The scope of this injunction is narrow, however. It applies only to users who purchase or license Word after the date the injunction takes effect. Users who purchase or license Word before the injunction’s effective date may continue using Word’s custom XML editor, and receiving technical support.” (p. 42.) “The injunction’s narrow scope substantially mitigates the negative effects on the public, practically and economically. By excluding users who purchased or licensed infringing Word products before the injunction’s effective date, the injunction greatly minimizes adverse effects on the public.” (p. 45.)
Date Injunction Begins. The court changed the effective date of the injunction based on the evidence presented to the district court. But since this change was applied to the district court’s order, the end result is that the injunction will take effect in a few weeks of this decision.
Subscribe to:
Posts (Atom)
