The threat of an injunction to protect patented technology, as seen in eBay v. MercExchange, is what drives infringers and patentees to strike deals — sometimes on the steps of the courthouse — because shutting down the business would lose money for both sides, says F. Scott Kieff, J.D., an associate professor of law at Washington University in St. Louis. These deals, he points out, are what drive innovation.
Kieff, a patent law expert, and co-authors Richard Epstein and Polk Wagner, wrote an amicus Supreme Court brief in favor of injunctive relief on the side of MercExchange. His thoughts on high profile patent cases follow.
Even if patentees don’t use their invention, injunctions should be allowed.
- “Lots of small inventor patentees look to license their technologies to others who are in the manufacturing business,” Kieff says. “A rule that required you to practice your patent would require that everyone vertically integrate. It’s great that the Davids out there can exist without having to be merged into those Golliaths.”
The same logic applies whether the patented technologies are trivial or not.
- “If inventions like MercExchange’s technology behind eBay’s ‘Buy it Now,’ is trivial, then it should be cheap to omit or design around — but if it’s worth so much to the infringer then it seems odd to condemn it as trivial,” he says. “We’d rather infringers put their ingenuity into striking deals or inventing around the patent than trumping up bizarre legal arguments about how their case is somehow “special” and somehow not right for an injunction.”
Fears about “Junk” patents should not cause us to attack all patents.
- “The rule we defend in this case only allows injunctions after the court has determined the patent is both valid and infringed,” Kieff says. “It would be deeply ironic and harmful to let fears about the weakest patents prevent injunctions for those that have been shown to be the strongest by making it this far through litigation over validity.”