Implementing the 'Adequate Remedy at Law' for Ongoing Patent Infringement after eBay v. MercExchange
48 Pages Posted: 17 Oct 2013
Date Written: October 15, 2013
Abstract
When the patentee wins an infringement suit and is denied an injunction under eBay, the remedy at law is not a compulsory license but an award of damages to compensate for the future infringement. The Restatement of Torts approach is the right one: When an ongoing wrong is occurring and an injunction has been refused, the plaintiff normally has a right of election, either to recover for future damages in a present judgment or to forego them for the time being and bring a follow-on action at a later time to recover the intervening damages.
Keywords: compulsory license, ongoing royalty, ongoing tort, right of election, damages, future damages, recovery, remedy at law
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