Thursday, July 11, 2019

STRONGER Patents Act Would Revive Presumption of Injunctive Relief

Senator Coons and Representative Stivers have reintroduced their Support Technology & Research for Our Nation’s Growth and Economic Resilience (STRONGER) Patents Act.  Here is the text of the bill.  (Bloomberg Law and IP Watchdog also have posts, with useful links.)  The bill, like the previous version, would partly overrule eBay by creating a presumption in favor of injunctive relief (more precisely, upon finding the patent valid and infringed, the court would presume irreparable injury and inadequacy of remedies at law).  I wrote about last year's version of the bill here.

As I've said in the past, neither eBay itself nor the courts' application of it is perfect; but the eBay standard is an improvement over the near-automatic granting of injunctions that we had in place before.  I worry that the bill's presumption of injunctive relief, unless further clarified, could be interpreted in a manner that would make it unduly difficult to avoid granting injunctions in cases where there is a substantial risk of holdup.  (Is it a rebuttable presumption?  By what standard--preponderance or clear-and-convincing evidence?  What evidence would be sufficient to rebut?)  Further, the evidence so far does not indicate that eBay has had a negative effect on U.S. innovation--indeed, the contrary appears to be true.  And prevailing patent owners still get injunctions in the majority of cases in which they seek them (contrary to the statement on IP Watchdog about "permanent injunctions being overwhelmingly denied since eBay").  But why let facts get in the way of ideology?

For my most recent article on the economics of injunctions in patent law, see here.

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