41 Pages Posted: 7 Oct 2007 Last revised: 5 Oct 2011
Date Written: December 3, 2007
The Supreme Court's 2006 eBay ruling marked a turning point in injunctive relief policy. Unfortunately, there seems to be considerable confusion about the implications of the decision. Some authors, concerned over patent holdup and excessive royalty rates, interpret the eBay decision as giving a green light to district courts to deny injunctive relief to non-manufacturing patent owners. Using an error cost framework, we examine the theory and evidence behind patent holdup concerns as they relate to injunctive relief policy. We find that the holdup theory justifying categorical limitations on injunctive relief rests upon overly narrow assumptions. As a result, categorical limitations are likely to result in substantial false positives, where patent holders with no designs of patent holdup are nonetheless denied injunctive relief. Instead of advocating categories of denial, we argue that the majority opinion in eBay can and should be read as a return to a balancing test, where costs and benefits are weighed carefully before granting or denying a patent injunction.
Keywords: injunctive relief, patent holdup, patent injunction, IP policy, standard setting, patent compensation, eBay, royalty rates
JEL Classification: O34, O31, O38, O33, K11
Suggested Citation: Suggested Citation
Denicolò, Vincenzo and Geradin, Damien and Layne-Farrar, Anne and Padilla, Jorge, Revisiting Injunctive Relief: Interpreting eBay in High-Tech Industries with Non-Practicing Patent Holders (December 3, 2007). Available at SSRN: https://ssrn.com/abstract=1019611 or http://dx.doi.org/10.2139/ssrn.1019611
By Mark Lemley