Copy Editing Is Not a Remedy Available in Court

By: David C. Brezina

The Court of Appeals for the Federal Circuit addressed a claim for a positive injunction essentially requiring copy editing. Specifically, US Inventor, Inc. v. Squires  sought to order the Commissioner of Patents and Trademarks to more  completely qualify the statement published on issued patents that the patent “grants to the person(s) having title to  this patent the right to exclude others from making, using, offering for sale, or selling the invention throughout the United States of America or importing the invention into the United States of America . . . .”

US Inventor claimed the statement was misleading because, while it tracks the Constitutional power of Congress to enact laws to issue patents, Supreme Court precedent requires that a permanent injunction to enjoin infringement meet the requirements of eBay, Inc. v. MercExchange, L.L.C.,  that “courts use the ‘four‑factor test historically employed by courts of equity’ to determine if a patent‑holder is entitled to a permanent injunction. 547 U.S. at 390. That test requires a plainti! to demonstrate ‘(1) that it has su!ered 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 391.”

Essentially, US Inventor wanted the “exclusive right” language qualified to something like the “right to ask a court to exclude others …” Read full article here.