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Re: JMRI case -- Implementation of the Federal Circuit's Opinion

From: Alexander Terekhov
Subject: Re: JMRI case -- Implementation of the Federal Circuit's Opinion
Date: Thu, 08 Jan 2009 16:57:42 +0100

Alexander Terekhov wrote:
> Now, let's recall what two other practicing IP lawyers said back in
> August regrading the CAFC decision:
> 1.

David A. Temeles, Jr. back in February 2008: 

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 

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. 


(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.)

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