Flexible Application of Injunctive Relief in Intellectual Property Enforcement (with Reference to Lessons from the Emerging U.S. Jurisprudence

This chapter examines the developing law in the US applicable to judicial decisions to grant or to deny various forms of equitable injunctive relief as a tool for intellectual property rights enforcement. It then analyzes the 2006 US Supreme Court decision, eBay, Inc. v. MercExchange, L.L.C., 547 US 388(2006), which reversed a prevailing general rule in US jurisprudence that courts will issue permanent injunctions against patent infringement absent exceptional circumstances, and held that the existence of an IP infringement itself did not necessarily entitle the right-holder to an injunction. The author places the eBay decision’s restoration of flexibility and discretion to trial court judges in regard to injunctive relief in an international context by showing that the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) is likewise flexible, and pointing to the possible lessons in terms of policy choices that post-eBay jurisprudence in the US may offer the law-makers and the judiciary in developing countries in balancing the right-holders’ interest and public interest when deciding to grant an injunction. These policy choices include the amount of compensation considered to be fair and adequate for different types of intellectual property right-holders; the costs of judicial supervision of injunctive remedies and concerns that such remedies may excessively empower right holders; the potential for injunctive remedies to deter legitimate challenges to the validity of asserted rights; and the public interests that warrant authorizing prospective infringement.https://digitalcommons.wcl.american.edu/facsch_bk_contributions/1086/thumbnail.jp