Hyman Rosen wrote: > > amicus_curious wrote: > > But when push came to shove, their injunction was denied since they > > could not show any value for the non-monetary issues. > > No. A preliminary injunction was denied because the plaintiffs > did not demonstrate the likelihood of irreparable harm should > the preliminary injunction not be granted. And that's *did not*, > not *could not* - they didn't try, because they thought they > didn't have to: > > <http://www.goodwinprocter.com/~/media/9DB0FE31AE574BCA94F40689EE789316.ashx> > It is important to note, however, that Jacobsen pled > his case assuming the availability of a presumption of > irreparable harm on a motion for preliminary injunction > in a copyright infringement case. If Jacobsen had been > aware at the pleading stage that evidence of actual harm
Oh really? At the pleading stage defendants pointed out that http://jmri.sourceforge.net/k/docket/264.pdf "In 2006, however, the Supreme Court eviscerated the presumption of irreparable harm to motions for permanent injunctions in the patent infringement context, holding that a Plaintiff seeking a permanent injunction must demonstrate that the traditional equitable factors for granting an injunction have been met. eBay Inc., 547 U.S. at 391. Since that time, and subsequent to this Courts August 17, 2007 Order denying Plaintiffs original motion for a preliminary injunction, numerous courts, including this Court, the Northern District of California, have held that, as a result of eBay, the presumption of irreparable harm no longer exists in the preliminary injunction context either. See e.g. Hologic, Inc. v. Senorx, Inc., 2008 U.S. Dist LEXIS 36693 at *44-46 (N.D. Cal. April 25, 2008), Tiber Labs, LLC v. Hawthorn Pharms., Inc., 527 F. Supp.2d 1373, 1380 (N.D. Ga 2007); Voile Mfg. Corp. v. Dandurand, 551, F.Supp.2d 1301, 1306 (D. Utah 2008); Sun Optics, Inc. v. FGX Intl, Inc., 2007 U.S. Dist. LEXIS 56351; 2007 WL 2228569, at *1 (D. Del. August 2, 2007); Torspo Hockey Intl Inc. v. Kor Hockey Ltd., 491 F. Supp. 2d 871, 881 (D. Minn. 2007); Allora, LLC v. Brownstone, Inc., 2007 U.S. Dist. LEXIS 31343, 2007 WL 1246448 at *5 (W.D.N.C. April 27, 2007) (copyright infringement). The Federal Circuit (citing its opinion in this case), after canvassing the Circuit law, just days ago, affirmed that eBay applies to preliminary injunctions in both the patent and copyright context. Abbott Labs v. Sandoz, --F.3d--, 2008 U.S. App. LEXIS 21880, *64-*87, 2008 WL 4636167 (Fed. Cir. October 21, 2008) (as it stands, neither district courts, nor litigants nor panels of this court, are provided with clear guidance, or any reason to reject the stricture of eBay, 547 U.S. at 393, that [n]othing in the patent Act indicates that Congress intended such a departure from the long tradition of equity practice. (at *86)). And right from the Jacobsen's mouth came this: http://jmri.sourceforge.net/k/docket/265.pdf "Meanwhile, the United States Supreme Court on November 12, 2008 issued a ruling overturning the Ninth Circuits standard for a preliminary injunction. Winter v. Natural Res. Def. Council, Inc., No. 07-1239, 555 U.S. __, slip op. at 12 (U.S. Nov. 12, 2008) (rejecting the possibility of irreparable injury standard). Under Winter, a plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable injury in the absence of preliminary relief, that the balance of the equities tips in his favor, and that an injunction is in the public interest. Slip op. at 10. Jacobsen addresses the stricter standard in this Reply memorandum, in addition to responding to Defendants Second Corrected Opposition [Docket #264]." 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
