LESI: Injunctions, a means to an end?
Other industry players usually find the threat of an injunction as too burdensome and are fearful that any licence deal under the threat of an injunction is imbalanced. Across the globe the question of whether an injunction is granted is viewed quite differently.
This article gives a short overview with a focus on a few select and popular litigation hotspots and highlights current trends.
Injunctions in the US
Since the decision eBay v MercExchange it has become increasingly difficult to obtain an injunction for a patent infringement. A patent owner has to present facts according to which: (1) it has suffered an irreparable injury; (2) remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) the public interest would not be disserved by a permanent injunction.
Regarding the public interest, the court should consider whether a critical public interest would be injured by the grant of the injunctive relief. These so-called eBay-factors have considerably reduced the attractiveness of the US system for patent infringement suits in parallel to ongoing licence negotiations. Over the past few years however there seems to be a trend that it is still possible to be granted such a permanent injunction, especially between direct competitors.
