ity. Coastal Harvest asserted that an injunction would only be used as a tool for forcing a settlement because an injunction would force Coastal Harvest to stop the alleged infringing activity. However, what a plaintiff does with an injunction is not the issue before a court. The law allows a patent owner to obtain an injunction barring a competitor from practicing its claimed invention. The Court’s finding that the illegality doctrine does not apply would, on these narrow facts, allow both damages and an injunction to be a potential remedy if infringement occurred.TakeawaysFuture defendants in patent suits concerning cannabis should be mindful of the allure and potential limitations of the illegality doctrine. Based on these limited facts, precedent may be beginning to sprout for patent owners to capitalize on their IP. Although damages may be available in circumstances similar to those in Gene Pool, future plaintiffs in the cannabis space may find including a prayer for relief under 35 U.S.C. §283 allows broader enforcement of their patent rights. Even if damages are barred because of the CSA, an injunction may still be available. As Coastal Harvest pointed out, injunctions can be powerful tools to leverage an advantageous settlement for a plaintiff. And even without a settlement, a court order barring a competitor from participating in the marketplace can still be a significant win for a plaintiff.Gene Pool shows the importance of artful pleading when either party is in the cannabis space. Although some states have made cannabis legal, the federal ban remains problematic for suits filed under federal law such as patent infringement. Patent holders may find that solely alleging infringement against non-CSA related activity such as hemp extraction can help to avoid a Motion to Dismiss brandishing the illegality doctrine (finding the alleged extraction of cannabis material broad enough to include “types of cannabis material excluded from the CSA”). The Court’s holding in Gene Poo

Performance Chem. Co. v. True Chem. Solutions, LLC, No. 6:21-cv-00222-ADA, Dkt. No. 334 at 1 (W.D. Tex. Apr. 6, 2021) (Albright, J.). Pursuant to its inherent authority, Federal Rule of Civil Procedure 37, and 35 U.S.C. § 283, the Court struck the defendant’s non-infringement defense and invalidity counter-claims, found that the defendant had willfully infringed, entered a permanent injunction against the defendant to prevent it from continuing its infringing activity, and awarded attorneys’ fees to the plaintiff.The plaintiff had alleged that the defendant infringed the asserted patents by manufacturing and using infringing frac trailers.

The Plant Variety Protection Act allows the U.S. Department of Agriculture to issue a compulsory licensing of a protected plant variety as necessary to ensure an adequate supply of fiber, food or feed, if the owner is unwilling or unable to meet the public demand at a fair price. 7 U.S.C. § 2321 et seq. 35 U.S.C. § 203.Id. 35 U.S.C. § 283 (“[Courts] may grant injunctions in accordance with the principles of equity to prevent the violation of any right secured by patent, on such terms as the court deems reasonable.”) (emphasis added). In Hatch-Waxman actions, however, an infringing generic will not receive FDA approval until all relevant patents expire.

And that if someone infringes one of those rights, the patent owner is entitled to damages and may also be entitled to an injunction. 35 USC §§ 283; 284. A patent owner may also be entitled to damages for infringing activity that occurred before the patent was ever granted for violation of the patent owner’s “provisional rights.”

This eliminates the potential for confirmation bias, where a Board member who decided to institute also decides whether that institution decision was correct.Section 105 Eliminates Anonymous Reexaminations Section 105 amends 35 USC 302(a) to require disclosure of the real party in interest in filing a request for reexamination. This eliminates anonymous reexaminations.Section 105 Restricts Reexaminations by Defendants Section 105amends 35 USC 302 to add a subsection (d) barring reexamination more than a year after the requester is served with a complaint alleging infringement of the patent.Section 106 Creates Presumption in Favor of Injunctions Section 106 amends 35 USC 283 to provide a presumption that the patent owner is entitled to an injunction. Gives effect the Constitutional mandate of exclusive rights to authors and inventors.Section 107 Eliminates Fee Diversion Section 107 eliminates the diversion of USPTO user fees from the Office.Section 108 Eliminates Knowledge of Patent from Inducement Section 108 Amends 35 USC 271 to define inducement in subsection (b) as causing the actions that constitute infringement regardless of knowledge of the patent.Section 108 Expands Inducement Section 108amends 35 USC 271(f) to add subsection (3)(A) to make inducement by the provision of an infringing design an act of infringement.

However, it should not be overlooked that the patent statute actually requires that injunctions in patent cases may only be entered “in accordance with principles of equity.” (35 U.S.C. § 283) There is no similar statutory directive to consider traditional equitable principles when determining damages for design infringement, which is where the analogy may break down. A number of groups filed amicus briefs in support of Samsung’s position, arguing for various reasons that the damage award in this case is improper and unreasonable.

This standard is much lower than the "clear and convincing evidence" standard required by a district court, because inter alia claims in district court litigation are presumed to be valid. 35 U.S.C. § 283. This created "a powerful incentive" for challenging patent validity before the PTAB in inter partes proceedings, Judge Newman writes, but "the correct law must be applied, and disputed facts found and reviewed on the entirety of the evidence, as the preponderance standard requires."

2008). However, this apportionment of the burden of proof seems to be contrary to the statutory presumption of validity (35 U.S.C. § 283). And the District Court here may have committed the same error discussed in the Tech.

In eBay, the Supreme Court held that the Federal Circuit erred in ruling that injunctive relief is virtually automatic in patent cases once there is a finding of validity and infringement. Citing the language of the Patent Act that injunctions “may” issue in patent cases “in accordance with the principles of equity” (35 U.S.C. § 283), the Supreme Court held that the propriety of injunctive relief must be determined via application of the four traditional equitable factors: (1) irreparable harm, (2) inadequacy of legal remedies, (3) balance of hardships, and (4) the public interest.3 Two years later in Winter,4 the Supreme Court extended eBay to cover preliminary injunctions. Winter involved an attempt by an environmental group to halt U.S. naval exercises involving sonar systems because of the alleged harm to whales.

However, Barrette alleges this addition failed to avoid direct infringement of the two patents.Barrette seeks an injunction, damages, and a finding of willful infringement pursuant to 35 U.S.C. §§ 283, 284, and 285.The case is Barrette Outdoor Living, Inc. v. Porcelen, Limited, Connecticut, LLC, No. 2:14-cv-00045-WCO, filed in the U.S. District Court for the Northern District of Georgia, Atlanta Division, on March 5, 2014, and is assigned to Judge William C. O’Kelley.