John C. Jarosz, Jorge L. Contreras, and Robert I. Vigil have published Preliminary Injunctive Relief in Patent Cases: Repairing Irreparable Harm, 31 Tex. Intell. Prop. L.J. 63 (2022). Here is a link to the paper, and here is the abstract:
Unlike a permanent injunction, which is an equitable remedy awarded to an injured party, a preliminary injunction is a form of interlocutory relief that is imposed by a court to preserve the status quo during litigation. In patent cases decided since (and often before) the Supreme Court’s 2006 decision in eBay v. MercExchange, courts have applied a four-factor test when considering the issuance of a permanent injunction. A similar test has evolved for preliminary injunctions, following the Court’s decision in Winter v. NRDC. Both the eBay and Winter tests rely heavily on whether the patentee is likely to suffer “irreparable” harm if an injunction is not granted. Yet despite the very different statutory bases and underlying reasoning for preliminary versus permanent injunctions, almost no scholarly attention or judicial reasoning has been devoted to an analysis of the meaning of irreparable harm in the context of preliminary injunctions. In order to gain a better understanding of the information that courts consider when deciding motions for preliminary injunctions, we collected data from 211 published district court opinions in patent cases decided between 2013 and 2020 in which a preliminary injunction was sought. Based on our research, as well as recent opinions of the Federal Circuit, we find that much of the uncertainty and lack of clarity surrounding preliminary injunctive relief can be reduced, or eliminated, by explicit recognition that irreparable harm has (or should have) a certain meaning, and that meaning is not the same as harm. We propose a new four-factor test for irreparable harm when assessing the issuance of preliminary injunctions in patent cases. That test provides that to be considered irreparable, harm should be that which, in the absence of an injunction, 1) would unduly disrupt the status quo, 2) is imminent and likely to occur, 3) is causally linked to the alleged infringement, and 4) is unlikely to result in payment of adequate compensation. We believe that the application of this new test will make the preliminary injunction analysis more certain, economically sensible, and better fitted to achieve its stated statutory goals.
I mentioned an earlier draft here. Very interesting paper, which I will be sure to cite in my own future work.
Professor Contreras also recently posted on ssrn a paper titled A Research Agenda for Standards-Essential Patents, which is forthcoming in A Research Agenda for Patent Law (Enrico Bonadio & Noam Shetov eds., Edward Elgar 2024). Here is the abstract:
This Chapter discusses the current state of legal, economic and policy research on standards-essential patents (SEPs) and fair, reasonable and nondiscriminatory (FRAND) licensing of SEPs, and recommends additional research directions for the future. Areas for future research include the investigation of market adoption of standardized products subject to FRAND licensing and available on a royalty-free basis, measurement of various characteristics of SEPs including disclosure, validity, essentiality and transfer, the evolution of SDO and consortia patent policies, SEP licensing behavior, both by SEP holders and product manufacturers, SEP and FRAND disputes and litigation, including arbitration, competition among patent pools for standards, and the political economy of SEP policy making.
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