Injury, Inequality, and Remedies: Developments in Injunctive Relief and Damages in Intellectual Property Cases

Abstract

While intellectual property (IP) may be more important than ever to contemporary businesses, its doctrines are becoming more sophisticated and its remedies are often difficult to obtain, especially for smaller companies and individuals. This Essay investigates the strategies utilized by IP owners to overcome challenging precedents issued in the wake of eBay v. MercExchange and Apple Inc. v. Samsung Electronics, Co., Ltd. It illustrates the complexities of these strategies via an analysis of recent developments in the law governing injunctions, royalties, lost profits, and related matters. Injunctive relief is rare even in the copyright and patent areas. In eBay Inc. v. MercExchange, L.L.C., the United States Supreme Court held that the traditional four-factor test for permanent injunctive relief applies to disputes arising under the Patent Act. The economic and policy-based considerations that drive remedial decisions tend to favor the larger, repeat players in each industry. This trend surfaces in at least three areas of remedial doctrine. First, “implementer” or “practicing” patent owners along with many copyright and trademark owners may enjoy a presumption in favor of injunctive relief absent extraordinary circumstances, or at least do not suffer from the virtual per se rule that non-practicing entities have no right to exclude. By virtue of conceptual shortcuts that help drive equitable relief decisions, they might find it easier to establish irreparable injury and no adequate remedy at law, even when they may be entitled to a windfall in statutory or treble damages. Second, the balance of hardships and public interest factors do not appear to aid small or medium-sized enterprises striving to level the playing field with well-funded, litigious infringers, as one might expect from “equity.” Lastly, firms with lucrative existing intellectual-property licensing or exploitation arrangements are better situated to show the incremental contribution of the infringed right to the respective revenue or anticipated profits of the parties.