In a National Law Review article: To promote Innovation, Congress Should Lessen Restrictions on Injunctive Relief for Patent Owners, Paul Michel, retired Chief Judge of the US Court of Appeals of the Federal Circuit, tackles the issue of injunctive relief for valid and infringed US patents.
Read the article for the argument, but here are a few of his observations:
"For much of our country’s history, permanent injunctions were the norm once patent infringement and validity were proven at trial by the patent owner. And getting an injunction depended on facts, not the patent owner’s business model – for example, whether they manufactured or licensed their invention. The practice was stable for all of that time – until recently."
"In 2006, in the Supreme Court’s eBay Inc. v. MercExchange, L.L.C. decision, the Court upended this settled practice, ruling that injunctions should not be automatically issued in patent cases and clarifying that courts must apply a four-part test to determine whether an injunction should be granted."
"For some years after, the pattern of injunction grants changed little. But eventually, it shifted greatly, as lower courts began to make injunction determinations based primarily on the patent owner’s identity. Those who manufacture products continued to get injunctions, while those who chose to license their patents instead, no longer did."
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