If traditional legal remedies (which usually involve compensation with money) wouldn't be fair in a particular case, a judge can use an equitable remedies. A court might issue an order (injunction) directing someone to do something or stop doing something. For example, if someone has built a garage that extends over the neighbor's property, a court might order the garage owner to tear it down. By contrast, the legal remedy would be for the owner to compensate the neighbor for the loss in property value.

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• Petitioning for Equitable Relief - Authored by: PJ on Wednesday, March 06 2013 @ 01:03 PM EST

Having done some checking up on the U.S. Constitution, and having had the time to read through the WLF brief, the essentials of the matter seem clear.

In a Common Law jurisdiction, or indeed in any jurisdiction that respects the rule of law, surely no executive body can have any authority to abridge the right of a citizen (or corporation) to petition a court for redress of grievances? Surely such a fundamental right must be protected in the Constitution? And indeed it is, in the First Amendment.

Next, injunction is an equitable relief, and the Supreme Court have already ruled in eBay v. MercExchange on how both District Courts and the Federal Circuit must proceed in determining whether to afford equitable relief. Justice Thomas delivered the opinion for a unanimous court. In that case, the Federal Circuit erred in reversing the denial of an injunction by the District Court, to enforce its "general rule that courts will issue permanent injunctions against patent infringement absent exceptional circumstances". The Supreme Court also held that the District Court had erred in apparently adopting expansive principles in seeking to apply the standard four-factor test. Referring to the District Court, the Supreme Court observed

Most notably, it concluded that " a plaintiff's willingness to license its patents" and "its lack of commercial activity in practicing the patents" would be sufficient to establish that the patent holder would not suffer irreparable harm if an injunction did not issue.

The Supreme Court held that the District Court in eBay erred through seeking to apply the four-factor test through general categorical principles, rather than through consideration of the balance of harm in the circumstances of the particular case before them.

There were two concurrences. Three justices (Roberts, Scalia, Ginsburg) pointed out that, historically, injunctions generally followed a verdict of patent infringement. But four justices (Kennedy, Stevens, Souter, Breyer) observed that an injunction might not be appropriate in cases involving trolls, or in cases where thousands of valid patents might read on a single device. Both dissents seemed worded as though these were off-the-cuff observations, not intended to limit the discretion of the District Court in appling the four-factor test in accordance with the principles of equity.

The Supreme Court made it clear that both the Federal Court and the District Court erred through seeking to apply categorical criteria inconsistent with the "principles of equity". Thus if the District Courts themselves have no authority to apply such categorical rules, then it is surely plain that the FTC certainly cannot seek to impose such rules on them.

Thus it would appear that an attempt of the FTC to deny to holders of FRAND patents the right to petition Federal courts for equitable relief would be unconstitutional, and any attempt to interfere with the discretion of District Courts by imposing a categorical rule that holders of FRAND patents cannot obtain injunctions would be contrary to the principles of equity, and contrary to the holding of the Supreme Court in eBay v. MercExchange. Thus it would seem obvious that there cannot be any basis in law for any attempt on the part of the FTC to deny to holders of FRAND patents the right to seek injunctions for patent infringement. The whole argument is of course far more authoritatively set out in the WLF brief.

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There may be those who doubt that the principles of some body of legal principle formulated before American Independence could be relevant to disputes over cutting-edge technology in the 21st century.

Thinking this over a few minutes ago, it occurred to me that consideration of principles of equity, and, in particular, the hoary old Maxims of Equity that are nevertheless set out as basic principles of Equity in modern textbooks on principles of law, might have a bearing on the dismissal of the Apple v. Motorola lawsuit by Judge Crabb in Wisconsin, discussed on Groklaw here and here.

The thought occurred to me that if Motorola were to be obliged to license a FRAND patent at a rate determined by a Federal Judge, that surely could not be a remedy available at common law. It must surely result from a claim for specific performance. And indeed this was the case. Apple's "Bench Memorandum" reproduced on Groklaw here makes it clear that, according to Apple, Apple was seeking specific performance of a contract between Motorola and IEEE and ITSI. Now the Maxims of Equity include principles such as "One who seeks equity must do equity" and "Equity does not require an idle gesture". In other words, the judge had discretion as to whether or not the grant specific performance by setting a licensing rate. Apple made it clear that it claimed the determination of a rate that was binding on Motorola, but not on Apple. In other words, Apple required Motorola to be put at a disadvantage. Moreover an arbitration that was not binding on both parties would not settle the matter but would merely be used as a bargaining chip in future negotiations. Therefore, on equitable principles, there would be no obligation on the judge sitting in equity to set a "fair rate" binding on only one party.

I suggest that the ability and indeed requirement of the courts to grant equitable remedies on the basis of fairness, the facts of the case before them, and the balance of harm, when exercising discretion with regard to equitable remedies, is precisely the reason why such matters should be determined by the courts, not by some form of arbitration to which parties would be required to submit prior to even submitting a plea for equitable relief.

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