Patent Litigation Lawyer

Since eBay, district courts have typically granted injunctive relief in favor of competitors but denied injunctive relief to non-competing licensors. In his concurrence, Justice Kennedy instructed courts to be cognizant of the nature of the patent being enforced and the economic function of the patent holder when applying the equitable factors. eBay, 126 S. Ct. at 1842 (Kennedy, J., concurring) (“When the patented invention is but a small component of the product the companies seek to produce and the threat of an injunction is employed simply for undue leverage in negotiations, legal damages may well be sufficient to compensate for the infringement and an injunction may not serve the public interest.”)

After eBay, several patentees began producing and selling their IP to become eligible for injunction treatment. As noted by Justice Kennedy, the threat of an injunction gives the patentee-plaintiff incredible leverage during the license negotiation. Removing the injunction removes the “nuclear option” plaintiffs relied upon in prior years, and substantially impaired the value of certain patentees’ IP (typically the small inventors who don’t practice their IP, or the so-called “trolls” who acquired an inventory of IP for the purpose of filing suits). Of course, it is all but impossible for some patentees to manufacture, produce, and sell their IP; the barriers to entry in that particular market, for example, may simply be cost-prohibitive.

Of course, competition and the potential loss of market share is not the only way to qualify for an injunction. In CSIRO v. Buffalo Technology, Inc., No. 6:06-CV-324 (E.D. Tex. June 15, 2007), the Court entered the injunction on the basis that the plaintiff is the principal scientific research organization of the Australian Federal Government. The Court found that “having its patents challenged via the courts not only impugns CSIRO’s reputation as a leading scientific research entity but forces it to divert millions of dollars away from research and into litigation costs. Delays in funding result in lost research capabilities, lost pportunities to develop additional research capabilities, lost opportunities to accelerate existing projects or begin new projects.” On the basis of these “lost opportunities,” the Court found the necessary irreparable injury, and entered the injunction.

Obviously a patentee cannot credibly become a legitimate competitor or research institution overnight. As such, it is an excellent idea for patentees who are considering litigation to contact a patent infringement lawyer early in the planning stages.

Armi Easterby