The Year of the Patent?

There is always a bit of a time lag between when this column is written and when it goes to press, so I always run the risk of missing the target. However, in the case of United States patent law, I am pretty confident that we’ll see some significant changes in the next nine months.

Previously, I discussed legislative action being considered by the United States Congress (October 2005’s “Patent Reform, American Style”, available online at http://www.linux-mag.com/2005-10/docket_01.html). This month, I want to focus on more areas of activity that may well change the way patent law is interpreted and practiced in the U.S.: court cases and patent office practices.

For the first time in decades, the U.S. Supreme Court is hearing a case regarding patent law. In fact, the high court will be considering two cases in its current term. The first is the case of eBay, Inc., et al. v MercExhange, L.L.C. The second is Illinois Tool Works, Inc., et al. v Independent Ink, Inc.

The eBay case raises the issue of when courts must issue injunctions in patent infringement actions. The case is interesting because the U.S.Patent Act states that district courts “ may grant injunctions in accordance with the principles of equity” (35 U.S.C.§283). Note the word “may,” not the word “shall.” One would naturally assume that may is given its common permissive meaning and that injunctions aren’t mandatory. Thus, one would have…

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