Hyman Rosen wrote: > > Alexander Terekhov wrote: > > Now what say you, Hyman? > > I say that you're once again conflating patents and copyrights.
Hyman, Hyman. In eBay, the Supreme Court was not persuaded by the Federal Circuit's reasoning that "statutory right to exclude alone justifies its general rule in favor of permanent injunctive relief." Id. Rather, the Supreme Court explained that "the creation of a right is distinct from the provision of remedies for violations of that right." Turning by analogy to the context of injunctions under the Copyright Act, which similarly embodies a statutory right to exclude, the Supreme Court noted that the comparable provision uses the same "may" language as the Patent Act and that "this Court has consistently rejected invitations to replace traditional equitable considerations with a rule that an injunction automatically follows a determination that a copyright has been infringed. Id. Go tell the Supreme Court that they are once again confusing patents and copyrights, Hyman. Note also that Phelps case in the 4th Circuit was a copyright case, not a patent. So go tell the 4th Circuit that they are once again confusing patents and copyrights as well, Hyman. ------ The eBay v. MercExchange case is now beginning to filter through the circuits and injunctions in patent and copyright cases are no longer automatic. See, e.g., In Christopher Phelps & Associates, LLC v. Galloway, 477 F.3d 128 at page 139 (4th Cir., 2007), where the Fourth Circuit stated: Insofar as Phelps & Associates suggests that it is entitled to injunctive relief, we reject the argument. See eBay Inc. v. MercExchange, L.L.C., ___ U.S. ___, ___, 126 S.Ct. 1837, 1839, 164 L.Ed.2d 641 (2006). In eBay, the Supreme Court rejected any notion that "an injunction automatically follows a determination that a copyright has been infringed." 126 S.Ct. at 1840 (reversing the Federal Circuit, which had articulated "a `general rule,' unique to patent disputes, `that a permanent injunction will issue once infringement and validity have been adjudged'"). The Supreme Court reaffirmed the traditional showing that a plaintiff must make to obtain a permanent injunction in any type of case, including a patent or copyright case: A plaintiff must demonstrate: (1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction. Id. at 1839. Moreover, the Court reiterated that even upon this showing, whether to grant the injunction still remains in the "equitable discretion" of the court. ------ Now what say you, Hyman? regards, alexander. -- http://gng.z505.com/index.htm (GNG is a derecursive recursive derecursion which pwns GNU since it can be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards too, whereas GNU cannot.) _______________________________________________ gnu-misc-discuss mailing list [email protected] http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
