The 'Right' to Injunctive Relief for Patent Infringement

Abstract

Last term, in eBay, Inc. v. MercExchange, U.S., 126 S. Ct. 1837 (2006), the Court seemingly rejected the Federal Circuit's longstanding practice of awarding permanent injunctive relief as a matter of course on the patentee establishing actual infringement. The Court concluded that federal courts should evaluate the availability of injunctive relief to redress continuing, actual infringement based on the traditional, four part test. This paper explores the Court's approach to injunctive relief in Patent litigation. I argue that eBay, Inc. supports an integrative view of Patent Act remedies (35 U.S.C. Section 286) that merges the availability of injunctive relief to the type of damages (royalties or lost profits) the patentee can claim under the Patent Act. In a nutshell, injunctive relief should ordinarily be limited to cases when the patentee seeks lost profits. In cases when the patentee seeks statutory royalties, injunctive relief should be ordinarily denied on the ground that the remedy at law is adequate.