An Analytic Study on Permanent Injunction in Patent Litigations

Abstract

This paper conducted an analytic study to realize how the Federal Courts in the United States applied ＂eBay＂'s opinion in the subsequent cases. The analytic study shows that a competition between the plaintiff and the defendant in the market is the most important factor for the courts to award an injunctive relief. The competitions between the plaintiff and the defendant can be divided into three categories: (1) the patent owner is a direct competitor of the defendant; (2) the patentee is an indirect competitor of the defendant; and (3) the patent holder is a research institute competing with other research institutes and universities in the technology market. The analytic study also shows that there have been the following four kinds of mechanisms to compensate a patentee who has already prevailed on the merits and been awarded damages but didn't obtain a permanent injunction relief : (1) without providing any further remedy; (2) to order the plaintiff to file a new lawsuit for the defendant's subsequent infringement after trial; (3) to award an ongoing royalty to the plaintiff; and (4) to award a compulsory license and an ongoing royalty to the plaintiff. This paper also discusses how ＂eBay＂ influences on NPEs and finds that the NPEs with R&D and the NPEs without R&D should be differently considered in permanent injunction proceedings. The NPEs without R&D should be hard to obtain a permanent injunction, but the NPEs with R&D should be possible to obtain a permanent injunction.