Switching to Prophylactic Injunctions
12 Pages Posted: 6 Mar 2012
Date Written: February 29, 2012
This essay highlights the significance of John Golden’s work on patents to the field of Remedies more generally. In his important new article, Injunctions as More (or Less) Than ‘Off Switches’: Patent-Infringement Injunctions’ Scope (Texas Law Review), Golden proves my thesis: prophylactic injunctions are, and should be, common, normal types of equitable relief. His careful and detailed analysis of the type and frequency of injunctions issued in patent infringement cases exposes the myth that prophylaxis is illegitimate. Steeped in details of patent law, Golden’s work nevertheless contributes significantly to the broader transsubstantive questions of the metes and bounds of equitable relief. His work documents with factual detail and normative argument what I have previously argued: that “prophylactic relief develops almost instinctively from lawyers and jurists seeking remedial alternatives to empty commands simply to stop the behavior.” Golden builds a persuasive argument for abandoning the simple “off switch” injunctions ordering the cessation of infringement for more specifically tailored injunctions of prophylactic relief.
Keywords: remedies, injunctions, patents, equity
JEL Classification: K1
Suggested Citation: Suggested Citation