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Authored by: PJ on Wednesday, March 06 2013 @ 04:39 AM EST |
No. Here's what equity (in
the US) means. It's the flexibility the judge has to figure out a fair result:
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. An
injunction is equitable relief.[ Reply to This | Parent | # ]
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Authored by: macliam on Wednesday, March 06 2013 @ 07:42 AM EST |
I don't see a contradiction. It is the same Equity in all Common Law
jurisdictions. (Genetically, I mean. The branch of the law known as Equity
that was the preserve of the English Lord Chancellor is the same Equity
administered by the Court of Chancery in Delaware, and the same Equity that is
administered by the majority of courts in Common Law jurisdictions that can
apply both Common Law and Equity, and is the legal basis for entitlement to
injunctions, estoppel, specific performance etc.) As I understand it, Judge Koh
could rule herself on whether or not to grant injunctions without putting the
matter to a jury (on the principle that entitlement to equitable remedies are
decided by the judge alone).
I may be wrong in all of this.[ Reply to This | Parent | # ]
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Authored by: macliam on Wednesday, March 06 2013 @ 03:52 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. [ Reply to This | Parent | # ]
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Authored by: macliam on Thursday, March 07 2013 @ 04:27 AM EST |
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. [ Reply to This | Parent | # ]
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