Alexander Terekhov wrote: [...] > Now, let's recall what two other practicing IP lawyers said back in > August regrading the CAFC decision: > > 1. http://www.crynwr.com/cgi-bin/ezmlm-cgi?3:mss:15936
David A. Temeles, Jr. back in February 2008: http://www.crynwr.com/cgi-bin/ezmlm-cgi?3:mss:15580 ------- Many of you may already be aware, but the Jacobsen v. Katzer case is not the only case in the last year or two with the potential to significantly impact the open source licensor's ability to rely on injunctive relief. 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. ------- 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
