Patent Act of 2005 - Change to injunctive relief provision in, but softened

One of the major questions surrounding the Patent Act of 2005 was how the injunctive relief provision would be handled.

Well, now we know.

It’s in.  But it’s in a form that is vastly different than that presented in the Committee Print.  Here are the two versions:

As introduced:

In determining equity, the court shall consider the fairness of the remedy in light of all the facts and the relevant interests of the parties associated with the invention.  Unless the injunction is entered pursuant to a nonappealable judgment of infringement, a court shall stay the injunction pending an appeal upon an affirmative showing that the stay would not result in irreparable harm to the owner of the patent and that the balance of hardships from the stay does not favor the owner of the patent.

Committee Print:

A court shall not grant an injunction under this section unless it finds that the patentee is likely to suffer irreparable harm that cannot be remedied by the payment of money damages.  In making such a finding, the court shall not presume the existence of irreparable harm, but shall consider and weigh evidence that establishes or negates any equitable factor relevant to a determination of the existence of irreparable harm, including the extent to which the patentee makes use of the invention.

Quite a softening, I’d say (and Nipper agrees.)

But there’s more to the story.  As introduced, the injunctive relief provision includes language requiring a stay upon a satisfactory showing.

This language seems to reflect some of the testimony presented during the oversight hearings.  Look at page 23 of Bob Armitage’s testimony, for example.

Now, the focus for the injunctive relief provision may shift to whether stays during appeals are necessary and if the threat of an injunction after trial — and before an appeal that might succeed in invalidating the patent or establishing that the patent was not infringed — actually forces businesses to prematurely settle patent infringement suits and denies the public the possibility of killing an invalid patent.

[Copyright 2005 J. Matthew Buchanan. Originally published on Promote the Progress (http://www.promotetheprogress.com).]