by Lee Gesmer | May 15, 2006 | Patents
In what comes as something of a surprise decision, the Supreme Court today ruled in favor of eBay in eBay v. MercExchange, holding that judges do not have to automatically enjoin companies from using patents that they have been shown to have violated. This decision shifts the balance of power in patent litigation away from patent enforcers in favor of defenders. The decision comes as a surprise because, based on comments by the Justices during oral argument, it appeared that the Justices were leaning in the opposite direction.
A link to the decision is [here].
An article discussing this case that I wrote for the April 28, 2006 issue of the Boston Business Journal while the case was pending is linked [here].
by Lee Gesmer | May 5, 2006 | What Were They Thinking
What Were They Thinking? Three California appeals judges thought not. In dismissing a defamation suit by two politicians who were listed as numbers one and two on a list of “Top Ten Dumb Asses,” the Court observed:
The accusation that plaintiffs are top-ranking “Dumb Asses” cannot survive application of the rule that in order to support a defamation claim, the challenged statement must be found to convey “a provably false factual assertion.” . . . A statement that the plaintiff is a “Dumb Ass,” even first among “Dumb Asses,” communicates no factual proposition susceptible of proof or refutation. It is true that “dumb” by itself can convey the relatively concrete meaning “lacking in intelligence.” Even so, depending on context, it may convey a lack less of objectively assayable mental function than of such imponderable and debatable virtues as judgment or wisdom. To call a man “dumb” often means no more than to call him a “fool.” One man’s fool may be another’s savant. Indeed, a corollary of Lincoln’s famous aphorism is that every person is a fool some of the time.
Here defendant did not use “dumb” in isolation, but as part of the idiomatic phrase, “dumb ass.” When applied to a whole human being, the term “ass” is a general expression of contempt essentially devoid of factual content. Adding the word “dumb” merely converts “contemptible person” to “contemptible fool.” Plaintiffs were justifiably insulted by this epithet, but they failed entirely to show how it could be found to convey a provable factual proposition.
Vogel v. Felice, 2005 WL 675837 (Cal. Ct. App., March 24, 2005).
by Lee Gesmer | May 5, 2006 | Patents
Patents. I wrote an article under the above title [link] which was published in the Boston Business Journal on April 28, 2006.
by Lee Gesmer | May 3, 2006 | Antitrust
Antitrust. While most people don’t know a lot about antitrust law, they do know that price fixing is illegal. And, if you asked them whether two large oil companies, such as Texaco and Shell, could form a joint company to sell oil throughout the western U.S. at a single price, they’d probably say that the “joint venture” was a technicality, and that it was no different than if Texaco and Shell got together and decided to sell gas at the same price individually.
Well, the Supreme Court would not agree. In Texaco v. Dagher [link] a case decided earlier this year, the operators of 23,000 service stations selling under the Texas or Shell brands of gasoline challenged the western states joint venture of the two giant oil companies for marketing gasoline, with the product still sold under both the Texaco and Shell brands but at the same price.
The Court held that such a joint venture is not “per se” illegal (illegal on its face and indefensible), because Texaco and Shell did not compete directly in the market, but participated jointly through their investment in the joint venture corporation. “As such, though [the joint venture’s] pricing policy may be price fixing in the literal sense, it is not price fixing in the antitrust sense,” wrote Justice Thomas.
This case is important law for joint ventures — it gives parties the confidence they need to price their products in the same manner as a single firm. However, the case leaves open the extent to which the Sherman Act’s ban on restraints of trade applies to joint ventures under the “rule of reason,” which looks at the competitive impact of the challenged practice.
by Lee Gesmer | Mar 31, 2006 | Patents
Patents. Here is a summary of the oral argument before the Supreme Court earlier this week, in the eBay v. MercExchange case, discussed earlier in this blog. [link]
The summary of oral argument (which apparently gave no clear clues to the outcome) is on the excellent SCOTUSblog [link].
UPDATE (April 18, 2006):
Here is a link to the transcript of oral argument before the Supreme Court [link]
The argument contains a humorous exchange between Carter Phillips, counsel for eBay, and Justice Kennedy:
Phillips: [references “patent trolls” in his argument]
Justice Kennedy: Well, is — is the troll the scary thing under the bridge, or is it a fishing technique? I– I want —
(laughter)
