[Ip-health] Post-Ebay Decision in D. Del.: Plaintiff Must Show Why Monetary Damages Aren't Enough

Tue Apr 17 18:35:17 2007

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One of the many new decisions by U.S. federal district courts, to
determine when a compulsory license to a patent is better than an
order to enforce exclusive rights (an injunction).   So far, the
injunction has been denied, but the patent owner may try again.  Jamie

http://271patent.blogspot.com/2007/04/post-ebay-decision-in-d-del-
plaintiff.html

Post-Ebay Decision in D. Del.: Plaintiff Must Show Why Monetary
Damages Aren't Enough

Praxair Inc. v. ATMI Inc. (03-1158) District of Delaware, March 27, 2007

After Praxair successfully sued ATMI for patent infringement, Praxair
moved for a permanent injunction on ATMI's infringing gas cylinder
device. The two companies were in "direct and head-to-head
competition" and are the two main mechanical-based systems for the
controlled delivery of industrial gases on the market. Praxair argued
that this relationship, and ATMI's sale of the infringing product,
entitled Praxair to an injunction.

ATMI countered that an injunction would force customers to incur
significant costs by shutting down operations to qualify an
alternative gas source or to switch to alternate cylinders. While
ATMI retained title to most of its cylinders, the customers own the
gas stored in the cylinders.

After reviewing the eBay four-factor test, the district court ruled
that Praxair has not provided sufficient evidence showing irreparable
injury and the inadequacy of legal remedies:

     Under eBay, a plaintiff must prove that it is entitled to its
statutory right to exclude by demonstrating, inter alia, irreparable
injury and the inadequacy of legal remedies. Though the quantum of
evidence required is relatively unclear, the court finds that Praxair
has not met its burden under eBav to put forward sufficient proof vis-
a-vis the broad scope of the relief requested. Praxair generally
argues that VAC's presence in the market will cause Praxair to
"likely lose additional market share, profits, and goodwill," without
further detail. Praxair has not provided or described any specific
sales or market data to assist the court, nor has it identified
precisely what market share, revenues, and customers Praxair has lost
to ATMI . . . While money damages are generally considered inadequate
to compensate for the violation of a patentee's right to exclude,
Praxair nonetheless had a burden to iterate specific reasons why
ATMl's infringement can not be compensated for with a money award.

The court stated that Praxair may renew its motion for injunctive
relief following appellate review of the jury verdict.

Download opinion here

http://www.delawareiplaw.com/media/2/20070402-Praxair%20-%2003-1158-
SLR.pdf

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James Packard Love
Knowledge Ecology International
http://www.keionline.org
james.love@keionline.org
Washington, DC +1.202.332.2670

"If everyone thinks the same: No one thinks." Bill Walton"