CP - Public Interest PIC - CNDI 2024

Public Interest PIC
Notes
You should use this file in conjunction with the Public Interest DA, specifically the Green Tech arguments.
This CP pics out of the “presumptive” remedy of injunctions, and instead creates a new standard for courts to use to determine if the injunction should be granted. Specifically, it reverses 3 out of the 4 prongs established in eBay but keeps the “public interest” standard. The CP would increase the authority of the courts to issue injunctions (sufficient to solve the aff) but preserves the courts ability to use the “public interest” standard to let helpful technology stay in production (like green tech). The Public Interest DA is the net-benefit.
Neg
1NC
Text: The United States federal government should restore the general rule for injunctive relief in patent cases except in instances where “the public interest would be disserved by” the issuance of an injunction.
The CP is possible, plan minus, and solvent.
Sease '21 (Edmund, Professor of Patent Law at Drake University, “Court Decisions and Recent Legislation Are Creating a "Perfect Storm" Incentive for Inventors to Rely on Trade Secrets, Not Patents.” 69 Drake L. Rev. 53 (2021), https://drakelawreview.org/wp-content/uploads/2021/06/sease-final.pdf)
IX. NEEDED CONGRESSIONAL ACTION
Two simple laws will rebalance the equation in favor of patents, as Article 1, section 8, clause 8 intends:
1. Legislatively overrule In re Etter and restore the presumption of validity in all post patent issuance examination proceedings;147 and
2. Legislatively overrule eBay, restoring the general rule for injunctive relief in patent cases when infringement and validity issues are won by the patentee.148
Legislatively overruling court decisions is not a new thought and has been done before to cure incorrect thinking in patent cases. For example, in the Cuno Engineering Corp. v. Automatic Devices Corp. opinion, written by Justice William Douglas, the Supreme Court imposed a “flash of genius test” for non-obviousness which was at best a catastrophe.149 The 1952 Patent Act overruled it by saying in 35 U.S.C. § 103, “Patentability shall not be negated by the manner in which the invention was made.”150 In no more words than this, the presumption of validity could be restored by amendment to 35 U.S.C. § 282 for post-issuance examination and the general rule of injunction for 35 U.S.C. § 283:
35 U.S.C. § 282(a): (first sentence amended) (addition underlined) A patent shall be presumed valid in all post issuance proceedings. 35 U.S.C. § 283: (amended, adding new last sentence) (addition underlined)
The several courts having jurisdiction of cases under this title may grant injunctions in accordance with the principles of equity to prevent the violation of any right secured by patent. . . as the court deems reasonable. Only in exceptional public interest cases shall an injunction be denied after a holding of infringement and non-invalidity.
These two amendments151 would mean requestors for reexamination would have to prove their case by clear and convincing evidence—the same standard used in Article III district court cases—and successfully litigated patents could get the injunction they deserve to breathe life into the exclusionary right grant of 35 U.S.C. § 154. In an almost inevitable result, it is likely post-issuance proceedings would plunge in popularity.152
X. CONCLUSION
Many, if not most, commentators would say the United States has the most valuable patent system in the world. These two simple amendments would end the perfect storm and keep it that way.
The CP’s balanced approach to enables green tech diffusion necessary to solve climate change.
Green tech innovation is coming now and is key to mitigate climate change—but only because IP protection law is balanced to enable innovation via the injunction analysis enabled by eBay.
Fowler 24—JD from Villanova University School of Law with experience in Patent Law, MS Bioengineering and B.Sc. Chemical Engineering (Addison. “No Need to Reinvent the Wheel: The Positive Relationship Between Green Technology and Patent Enforcement.” Villanova Environmental Law Journal, vol. 35, no. 1, Feb. 2024, pp. 151–52, https://digitalcommons.law.villanova.edu/elj/vol35/iss1/4)//mgm
2. Current Injunction Law Is Equipped to Maintain the Fight Against Climate Change
This Comment argues that the equitable discretion afforded to courts in injunction decisions, as bolstered by eBay, provides adequate assurance that patent infringement proceedings do not harm the public through a lack of access to green technology. Cases such as Siemens Gamesa, BASF, and the other above-discussed injunction decisions exemplify the highly practical, fact-specific analysis in which courts can engage when adjudicating an injunction request, especially within the public interest prong. Courts have extended this discretion to embrace sensitivity to public environmental concerns. The Siemens Gamesa decision is notable for its explicit invocation of climate science to inform its analysis and its subsequent tailored injunction. Because injunction cases have not often hinged on the public interest inquiry, the Siemens Gamesa decision will likely have outsized influence going forward when the public interest is threatened.
The fight against climate change depends on a robust market of sustainable innovation. Efforts to weaken patent protections for green technologies risk disrupting the motivations crucial to future progress. Courts have continued to grant injunctions to a significant majority of requests following a finding of infringement, thereby largely maintaining patent exclusivity. Even still, many commentators view eBay itself as a destructive decision for patent protection. Further steps to undermine patent rights, especially those specifically targeted at green technology, would be counterproductive to the continued advancement of these key areas of innovation.227 This Comment asserts strong patent rights, enforced by a court’s equitable discretion post-eBay, will best serve this innovative ecosystem, and thus, the fight against climate change.
Extinction—nuclear war and ecological breakdown—feedback loops make adaptation impossible
Spratt & Dunlop 18—David Spratt, Research Director for Breakthrough, climate-policy analyst, co-founder of Carbon Equity; and Ian Dunlop, senior Advisory Board member at Breakthrough, Former Chair of the Australian Coal Association (What Lies Beneath: The Understatement of Existential Climate Risk. The Breakthrough Institute, Aug. 2018, pp. 13–15, https://52a87f3e-7945-4bb1-abbf-9aa66cd4e93e.filesusr.com/ugd/148cb0_a0d7c18a1bf64e698a9c8c8f18a42889.pdf)//mgm
Climate change is an existential risk to human civilisation: that is, an adverse outcome that would either annihilate intelligent life or permanently and drastically curtail its potential.
Temperature rises that are now in prospect, after the Paris Agreement, are in the range of 3–5°C. At present, the Paris Agreement voluntary emission reduction commitments, if implemented, would result in planetary warming of 3.4°C by 2100,30 without taking into account “long-term” carboncycle feedbacks. With a higher climate sensitivity figure of 4.5°C, for example, which would account for such feedbacks, the Paris path would result in around 5°C of warming, according to a MIT study.31 A study by Schroder Investment Management published in June 2017 found — after taking into account indicators across a wide range of the political, financial, energy and regulatory sectors — the average temperature increase implied for the Paris Agreement across all sectors was 4.1°C.32 Yet 3°C of warming already constitutes an existential risk. A 2007 study by two US national security think-tanks concluded that 3°C of warming and a 0.5 metre sea-level rise would likely lead to “outright chaos” and “nuclear war is possible”, emphasising how “massive non-linear events in the global environment give rise to massive nonlinear societal events”.33 The Global Challenges Foundation (GCF) explains what could happen:
“If climate change was to reach 3°C, most of Bangladesh and Florida would drown, while major coastal cities — Shanghai, Lagos, Mumbai — would be swamped, likely creating large flows of climate refugees. Most regions in the world would see a significant drop in food production and increasing numbers of extreme weather events, whether heat waves, floods or storms. This likely scenario for a 3°C rise does not take into account the considerable risk that self-reinforcing feedback loops set in when a certain threshold is reached, leading to an ever increasing rise in temperature. Potential thresholds include the melting of the Arctic permafrost releasing methane into the atmosphere, forest dieback releasing the carbon currently stored in the Amazon and boreal forests, or the melting of polar ice caps that would no longer reflect away light and heat from the sun.”34
Warming of 4°C or more could reduce the global human population by 80% or 90%,35 and the World Bank reports “there is no certainty that adaptation to a 4°C world is possible”.36 Prof. Kevin Anderson says a 4°C future “is incompatible with an organized global community, is likely to be beyond ‘adaptation’, is devastating to the majority of ecosystems, and has a high probability of not being stable”.37 This is a commonly-held sentiment amongst climate scientists. A recent study by the European Commission’s Joint Research Centre found that if the global temperature rose 4°C, then extreme heatwaves with “apparent temperatures” peaking at over 55°C will begin to regularly affect many densely populated parts of the world, forcing much activity in the modern industrial world to stop.38 (“Apparent temperatures” refers to the Heat Index, which quantifies the combined effect of heat and humidity to provide people with a means of avoiding dangerous conditions.) In 2017, one of the first research papers to focus explicitly on existential climate risks proposed that “mitigation goals be set in terms of climate risk category instead of a temperature threshold”, and established a “dangerous” risk category of warming greater than 1.5°C, and a “catastrophic” category for warming of 3°C or more. The authors focussed on the impacts on the world’s poorest three billion people, on health and heat stress, and the impacts of climate extremes on such people with limited adaptation resources. They found that a 2°C warming “would double the land area subject to deadly heat and expose 48% of the population (to deadly heat). A 4°C warming by 2100 would subject 47% of the land area and almost 74% of the world population to deadly heat, which could pose existential risks to humans and mammals alike unless massive adaptation measures are implemented.”39 A 2017 survey of global catastrophic risks by the Global Challenges Foundation found that: “In high-end [climate] scenarios, the scale of destruction is beyond our capacity to model, with a high likelihood of human civilization coming to an end.”40 84% of 8000 people in eight countries surveyed for the Foundation considered climate change a “global catastrophic risk”.41 Existential risk may arise from a fast rate of system change, since the capacity to adapt, in both the natural and human worlds, is inversely proportional to the pace of change, amongst other factors. In 2004, researchers reported on the rate of warming as a driver of extinction.42 Given we are now on a 3–5°C warming path this century, their findings are instructive:
• If the rate of change is 0.3°C per decade (3°C per century), 15% of ecosystems will not be able to adapt.
• If the rate should exceed 0.4°C per decade, all ecosystems will be quickly destroyed, opportunistic species will dominate, and the breakdown of biological material will lead to even greater emissions of CO2.
At 4°C of warming “the limits for adaptation for natural systems would largely be exceeded throughout the world”.43 Ecological breakdown of this scale would ensure an existential human crisis. By slow degrees, these existential risks are being recognised. In May 2018, an inquiry by the Australian Senate into national security and global warming recognised “climate change as a current and existential national security risk… defined as ‘one that threatens the premature extinction of Earth-originating intelligent life or the permanent and drastic destruction of its potential for desirable future development’”.44 In April 2018, the Intelligence on European Pensions and Institutional Investment think-tank warned business leaders that “climate change is an existential risk whose elimination must become a corporate objective”.45 However the most recent IPCC Assessment Report did not consider the issue. Whilst the term “risk management” appears in the 2014 IPCC Synthesis Report fourteen times, the terms “existential” and “catastrophic” do not appear.
Existential risks require a particular approach to risk management. They are not amenable to the reactive (learn from failure) approach of conventional risk management, and we cannot necessarily rely on the institutions, moral norms, or social attitudes developed from our experience with managing other sorts of risks. Because the consequences are so severe — perhaps the end of global human civilisation as we know it — “even for an honest, truth-seeking, and well-intentioned investigator it is difficult to think and act rationally in regard to… existential risks”.
2NC – Solvency
Overruling eBay destroys that balance—removing eBay’s public interest prong means automatic injunctions wreck innovation. And, eBay’s good for patent protection—it doesn’t swing the pendulum too far.
Fowler 24—JD from Villanova University School of Law with experience in Patent Law, MS Bioengineering and B.Sc. Chemical Engineering (Addison. “No Need to Reinvent the Wheel: The Positive Relationship Between Green Technology and Patent Enforcement.” Villanova Environmental Law Journal, vol. 35, no. 1, Feb. 2024, pp. 135–37, https://digitalcommons.law.villanova.edu/elj/vol35/iss1/4)//mgm
III. NEW INDUSTRY-STANDARD: LEGAL LANDSCAPE POST-EBAY MAKES ROOM FOR ENVIRONMENTAL CONCERNS
eBay marked the demise of courts’ nearly automatic grant of injunctive relief based on the presumption of irreparable harm. As the Federal Circuit has since certified, “eBay jettisoned the presumption of irreparable harm as it applies to determining the appropriateness of injunctive relief.” Granted, the Federal Circuit has specified this development “does not swing the pendulum in the opposite direction,” noting the fundamental exclusivity of a patent property right must still be considered in the analysis. Nonetheless, a trend began in the post-eBay era for district courts to forgo permanent injunctions and instead award ongoing royalty damages.
Another noteworthy aspect of the eBay decision is that it requires district courts to affirmatively address public interest considerations in their injunction analyses. District courts have since deferred strongly to Justice Kennedy’s eBay concurrence in their own decisions.92 As such, some observers argue the concurrence is even more impactful than the unanimous majority.93
The Federal Circuit has since reflected on the public interest prong in several decisions. The court notably affirmed the public’s “strong” interest in maintaining patent property rights as a driver of innovation. Nonetheless, the court has expressed that the “touchstone” for adjudicating an injunction request involves “strik[ing] a workable balance between protecting the patentee’s rights and protecting the public from the injunction’s adverse effects.”
The Federal Circuit, in Amgen, Inc. v. Sanofi, described the public interest prong as its own independent requirement. There, the Federal Circuit went so far as to characterize the injunction the district court granted despite a finding it would be a disservice to the public interest, as a “clear violation of eBay.” To that end, the Federal Circuit has favored injunctions tailored to avoid unduly disrupting markets and consumer interests.
2NC – PICs Good
PICs good
1. Predictable clash---generates in depth debate over the core controversies of the 1AC
2. Rigorous research---requires the aff to defend their proposal---the alternative to which is lazy plan writing and researching
3. Advocacy---they should be able to defend every part of the 1AC, not just parts of it---their interpretation makes them bad advocates
4. Aff choice---they read it, so they should be forced to defend it---that proves it’s predictable
5. Logic---only logical to do the CP if it’s better and requires less action
Aff
Read aff cards from the Public Interest DA.
2AC – Perm
Perm: Do Both
The CP isn’t textually competitive because they simply add exception clause. We’ll insert the perm text that includes all of the aff and only words from the CP text:
The United States federal government should substantially increase its use of injunctions as the presumptive remedy for an ongoing violation of a valid patent except in instances where “the public interest would be disserved by” the issuance of an injunction.
2AC – PICs Bad
PICs aren’t legitimate
--- PICing out of small parts of the plan make it impossible to generate substantial offense because they steal the aff, which ruins ground.
--- they’re also not predictable and infinitely regressive because they justify tiny word pics
Reading the net benefit as a DA solves their offense