Implementing the 'Adequate Remedy at Law' for Ongoing Patent Infringement after eBay v. MercExchange

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