Constitutional argument against changing injunctive relief
May 18, 2005 on 10:03 am | In Legislation/Regulation |Dennis Crouch at the Patently-O blog raises an interesting point…is there a Constitutional argument regarding whether or not injunctive relief can be only available if the patentee is using the patent and/or injunctive relief could eliminated outright (as proposed in the current patent reform bill drafts/conversations). I anxiously await the comments to be posted to his post…
What does this mean in English? [note…I’m just generally explaining the issue…don’t nit pick me on the details]
Currently, a patent holder can go to court and ask the court to enjoin (order to stop) infringing conduct by an (alleged) infringer if the patent holder can prove: (1) they will suffer irreparable injury if the preliminary injunction does not issue; (2) their injury outweighs the harm to the alleged infringer if the preliminary injunction is issued; (3) it is in the public’s interest to grant the preliminary injunction, and (4) the patent holder has a likelihood of success. This whole process can take a number of days/weeks…
Corporations who get sued often for patent infringement don’t like injunctive relief (obviously). They don’t like having a court shut them down…ordering them to stop producing the product.
The threat of an injunction is a big tool for small businesses/independent inventors against a large corporation. Sometimes it is the only thing that will bring the corporation to the bargaining table. Without it…corporations may be inclined to give small businesses/independent inventors the “we’ll see you in court…hope you can afford to pay hundreds of thousands of dollars in legal bills while you battle us†treatment.
Thus…I can’t see small entities in any way agreeing to eliminate injunctive relief and/or scale it back.
Time will tell…
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