In Search of Injunctive Relief in Patent Infringement Litigation
The International Trade Commission has emerged as an important forum for patent owners because the ITC is not required to follow the Supreme Court’s precedent in eBay v. mercExchange when issuing exclusion orders or cease and desist orders, although they are for all intents and purposes effectively injunctive relief. The ITC is not ignoring the Supreme Court, but rather the statutory charge of the ITC is different than that of a federal district court and the Supreme Court’s decision is not applicable.
Innovators believe injunctions are necessary to address widespread patent infringement and to avoid eBay have been increasingly using the ITC as a venue. Because patent damages will generally approximate only what a negotiated pre-infringement license would have cost, implementers may have no real incentive to take a license. The risk that an implementer engages in “efficient infringement” has made the International Trade Commission (ITC) an increasingly attractive forum, for at least some patent owners.
This panel will discuss the issues surrounding the rise of the ITC as a preferred jurisdiction for certain patent owners, when it is an appropriate forum, and the challenges that exist for litigants.
- DOJ Antitrust Chief Raises Standard Setting Concerns
- USPTO, DOJ & NIST Issue Joint Policy Statement on Injunctions for Standard Essential Patents
- Injunctive Relief on Standard Essential Patents is Available at the ITC (Mintz Levin)
- Obtaining Injunctions Under eBay Versus at the International Trade Commission
- The Impact of eBay v. mercExchange (forthcoming)
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