30 Pages Posted: 5 Mar 2017 Last revised: 9 Oct 2017
Date Written: February 28, 2017
Until recently, successful patent plaintiffs would almost always be awarded injunctions against future infringement. Thanks to a recent change in remedies jurisprudence, however, patent plaintiffs today are often denied injunctions and awarded, instead, ongoing royalties. This change was made for reasons that have nothing to do with the pace of litigation. But the change turns out to meaningfully reduce the cost of delay. After all, delay is costly in cases that possibly involve injunctions because, in those cases, every extra day of litigation is another day during which the accused infringer might wrongfully use the patented technology. In cases without injunctions, by contrast, delay simply takes a day for which the accused infringer might have been paying a court-ordered ongoing royalty and transforms it into a day for which the accused infringer might instead pay court-ordered backward-looking damages. Either way, the infringer is paying a fee. Either way, that fee is determined by the court. As a result, certain types of patent cases should today slow down. That is, courts should extend deadlines and even stay certain cases, in that way making room for tailored, accuracy-enhancing delays that previously might have seemed too costly to embrace.
Keywords: patent, remedies, injunction, eBay, ongoing royalties, damages
JEL Classification: O3, O31, O34
Suggested Citation: Suggested Citation