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論著名稱:
How Will eBay v. Mercexchange Affect Preliminary Injunction?
文獻引用
編著譯者: 吳盈德
出版日期: 2014.06
刊登出處: 台灣/NTUT Journal of Intellectual Property Law and Management第 3 卷 第 1 期/34-55 頁
頁  數: 20 點閱次數: 1222
下載點數: 80 點 銷售明細: 權利金查詢 變更售價
授 權 者: 吳盈德
英文關鍵詞: Principle of equityPatent LitigationPatent InfringementPreliminary InjunctionTransaction Costs
英文摘要: In eBay Inc. v. MercExchange LLC, 126 S.Ct. 1837 (2006), the Supreme Court unanimously held on May 15, 2006 that a permanent injunction under the Patent Act, 35 U.S.C. § 283, is to be granted under the “principles of equity,” traditionally used by the courts of equity instead of the prior Federal Circuit’s presumption that an injunction must be issued, “absent a sound reason for denying it.” This paper explores the injunction relief cost problem between patentee and patent infringer after the eBay case. From a patentee’s standpoint, their purpose in bringing the patent litigation is to obtain royalties or compensatory damages, and to immediately exclude damages caused from patent infringement. On the contrary, a patent infringer’s basic desire is to obtain a beneficial position during the process of negotiation and end the litigation for a minimum cost. In order to equitably and rationality distribute cost between patentee and patent infringer, I propose four different methods of economic analysis of the preliminary injunction. These approaches are likelihood of success, patentee’s damage and award compensation, the influence of the court that issued the preliminary injunction and transaction costs.
目  次: I. Introduction to the Patent System and Preliminary Injunction
A. Patent system
1. Patent Right
2. Incentive Theories and Rent-Seeking
B. Preliminary Injunction
1. Proceeding for Preliminary Injunction
2. Determination Standards for Preliminary Injunction and Influence of the Supreme Court's eBay Decision
II. An Economic Analysis of the Law of Patent Litigation
A. Likelihood of Success
1. The Validity of a Patent
2. The Court Defines the Claim of the Patent
3. The Product is Infringed or Not
B. Patentee Award Compensation for Damages in Favor of Judgment
1. Patentee’s Damages and Lost Profits
2. Patent Infringer Obtains Profits from this Infringeme
3. Reasonable Royalty
C. The Influence of Court That Issued the Preliminary Injunction
D. Transaction Cost
1. Transaction Cost of Patent Litigation
2. The Economic Cost in Transaction Cost
III. An Economic Analysis of the Law of Preliminary Injunction
A. Motivation for Preliminary Injunction
B. The Foundation of Economic Analysis of Preliminary Injunction
C. The Foundation in Economic Analysis of Involved Litigation
D. The Foundation of the Court in Economic Analysis of Patent litigation
E. The Foundation of the Involved Parties in Economic Analysis of Patent Litigation
IV. Proposal of Suggestions about Issuing Preliminary Injunction
A. Stand on the View of Transaction
B. Reconstruct Market
C. Consider other Factors and Facts
D. The Same and Clear Standard of Judgment
E. Striking a Balance between Protecting the Patent and Fair Competition
V. Conclusion
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相關論著:
吳盈德,How Will eBay v. Mercexchange Affect Preliminary Injunction?,NTUT Journal of Intellectual Property Law and Management,第 3 卷 第 1 期,34-55 頁,2014年06月。
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