Author(s)
John M. Golden
Source
85 Texas Law review 1111, 2007
Summary
This paper asks whether courts should make it harder for some patent owners to stop others from using their technology.
Policy Relevance
There are good reasons for a rebuttable presumption in favor of granting a permanent injunction against proven patent infringement even when the patent owner does not make a competing product. Adopting a general presumption against injunctive relief for noncompeting patent owners might have a negative impact on innovation.
Main Points
- Mark Lemley and Carl Shapiro argue that, in various circumstances, patent owners who do not actually build products should not be able to stop others from using the technology. Recently, some courts seem to agree, declining to enjoin infringement.
- In the nineteenth century, inventors often did not produce their own inventions for mass markets, but licensed patents to others, perhaps to become part of a more complex product.
- Patent owners might often settle for less than the invention is worth, because the value of an invention can be difficult to determine and patent rights can be difficult to enforce. Where claims of patent infringement or validity are especially weak, fear of litigation costs might be more important than fear of an injunction in causing potentially inflated rewards for patent owners.
- Injunctions have considerable benefits:
- When infringement is enjoined, courts need not struggle with the problem of measuring the value of an infringer’s future use of the invention.
- Courts might discourage innovation by setting damages too low.
- The ability to stop large firms from copying ideas can be important to small firms seeking capital.
