January/February 2013
IP Litigator
By Doris Johnson Hines; Joseph Preston Long, Ph.D.
Authored by Doris Johnson Hines and J. Preston (J.P.) Long, Ph.D.
What is the patent right? The patent statute states that "[e]very patent shall contain . . . a grant . . . of the right to exclude others from making, using, offering for sale, or selling the invention throughout the United States or importing the invention into the United States." 1 The U.S. Patent and Trademark Office (USPTO) confirms that view, stating that "[t]he right conferred by the patent grant is, in the language of the statute and of the grant itself, 'the right to exclude others from making, using, offering for sale, or selling' the invention in the United States or 'importing' the invention into the United States. What is granted is not the right to make, use, offer for sale, sell or import, but the right to exclude others from making, using, offering for sale, selling or importing the invention." 2 While unequivocally including the right to exclude as a fundamental part of the patent grant, the patent statute also states that "a patent shall include the right to obtain a reasonable royalty from any person who . . . makes, uses, offers for sale, or sells in the United States the invention." 3
The patent right is thus a "quantum" right.4 It is part property right and part liability right until a court orders it to be one or the other. Historically, this dichotomy was recognized by a division in timing. Past infringement was assessed as a liability right. A right to exclude (or to prevent activity from occurring) is nonsensical for infringing activities that occurred in the past. For such activity, the available remedy is financial compensation, such as a reasonable royalty or lost profits.
But for activities occurring after a determination of infringement has been made, a successful patent owner has two available remedies. Either the remedy will be liability in the form of financial compensation, or it will be a property-like exclusion in the form of injunctive relief. Under the broadest reading of the patent statute, a patent owner has the option of electing its preferred remedy. Indeed this was how courts once seemed to view the patent right. As the Federal Circuit noted, "a patentee may choose among alternate remedies, but to deny a patentee access to statutory remedies is to withhold the protection of the law." 5 Circumstances have changed, however, and they are continuing to change. Although the patent owner may still choose its preferred remedy and advocate for that remedy, nothing guarantees that a court will order it, especially if it is injunctive relief.
Recent cases have demonstrated, in fact, that the patent right is not necessarily the right to exclude6 with respect to future conduct. For a given infringing activity, the big question for courts and patent litigants is whether a given patent grants the right to prevent further infringing conduct or grants the right for the patentee to receive monetary compensation for continuing infringement. The gamble for patent owners and those developing and implementing technology is determining in advance what the outcome will be.
This is because the patent right is subject to equitable considerations, as well as statutory ones. The Supreme Court has identified four equitable factors relevant to the property-liability dichotomy: (1) whether the plaintiff will suffer irreparable harm in the absence of injunctive relief; (2) whether other remedies available at law, such as monetary damages, are adequate to compensate for the infringement; (3) whether the balance of hardships favors injunctive relief; and (4) whether the public interest will be harmed by injunctive relief.7 Although this has been the law in the Federal Circuit since its inception,8 the meaning and application of these factors continues to evolve. This article focuses primarily on recent changes to irreparable harm standards, how those changes have altered the patent litigation landscape, and how the ongoing FRAND debate may further shape this area of law.
The injunction revolution began in 2006, when the Supreme Court handed down its decision in eBay.9 Concerned primarily with the perceived problem of patent hold-up, the Court announced that a successful patent infringement claim does not automatically entitle a patentee to a permanent injunction. The Court condemned the Federal Circuit's "general rule that such injunctions should issue" 10 to successful plaintiffs. Following eBay, the rate at which district courts granted injunctive relief in patent cases dropped noticeably—by about 20 percent.11
After eBay, savvy patent owners began filing more complaints in the International Trade Commission (ITC or Commission). Unlike the district courts, the ITC does not require personal jurisdiction over the parties and instead exercises in rem jurisdiction over allegedly infringing imported goods. The Commission cannot award money damages and cannot issue injunctions per se. Rather, statute authorizes the ITC to grant cease and desist orders (C&Ds)12 and limited or general exclusion orders (respectively, LEOs and GEOs) directed to infringing products.13 Because many products covered by U.S. patents are manufactured or assembled overseas, the practical effect of the relief that can be awarded by the ITC is almost identical to that of an injunction issued by a district court.14 But the ITC does not issue injunctions; it issues cease and desist orders and exclusion orders. As ITC complainants have argued, and the Commission has agreed,15 the equitable factors considered in issuing district court injunctions, therefore, do not apply.16
In late 2010, the Federal Circuit addressed this issue head-on in Spansion.17 The court agreed with the Commission, holding that " eBay does not apply to [ITC] remedy determinations." 18 With that decision, the Federal Circuit made a clear distinction between the district courts and the ITC on permanent injunctive relief standards. And by doing so, it also gave its tacit approval to patent owners seeking to avoid eBay by filing parallel actions in both the district courts and the ITC, a strategy that has proven successful.19 Although the rate at which district courts grant permanent injunctions to successful patent owners dropped from about 95 percent to about 75 percent after eBay, the ITC continues to grant C&Ds and LEOs to successful patent owners (with a domestic industry) as a matter of course.20 This means that the likelihood of obtaining injunctive-type relief is about 25 percent higher for successful patent owners in the ITC as opposed to successful patent owners in the district courts.
This may seem surprising, at least when considering the statutory language. Unlike the language of the Patent Act quoted above, which appears to define a property right ( i.e., the right to exclude), without exceptions,21 the statutory authority of the ITC states:
[i]f . . . there is a violation . . . , [the ITC] shall direct that the [imported] articles concerned . . . be excluded from entry into the United States, unless, after considering the effect of such exclusion upon [1] the public health and welfare, [2] competitive conditions in the United States economy, [3] the production of like or directly competitive articles in the United States, and [4] United States consumers, it finds that such articles should not be excluded from entry.22
Despite these statutory limitations, the ITC has refused to grant injunctive-type relief in only three instances, the most recent of which was in 1984.23 By contrast, district courts frequently deny injunctive relief, despite there being no explicit statutory language authorizing them to do so.24
The consequences of this division between the district courts and the ITC have become readily apparent. First, unlike remedies at the ITC, the rate at which injunctions are granted varies in the district court, depending on the category of plaintiff. A study conducted by Chein and Lemley suggests that university plaintiffs have obtained injunctions 100 percent of the time, individual plaintiffs 90 percent of the time, practicing entities 79 percent of the time, and non-practicing entities (NPEs) 26 percent of the time.25 Because injunctive-type relief is essentially automatic for successful complainants in the ITC, regardless of their status, NPEs have filed numerous complaints at the ITC since eBay.26 The same Chien-Lemley study suggests that in 2006, when eBay was decided, NPEs initiated only 7 percent of all ITC cases. By 2011, they accounted initiated over 25 percent.27
This trend may continue for several reasons. First, the ITC offers a number of advantages to patent owner complainants, in addition to the increased availability of injunctive-type relief. Not only is broad discovery permitted in ITC investigations, where the limitations imposed by the Federal Rules of Civil Procedure do not apply, but they must be concluded "at the earliest practicable time" 28—typically within about 16–18 months after institution.29 And district courts routinely stay cases once a parallel ITC investigation has been initiated.30 Thus, when there are parallel district court and ITC proceedings, discovery from the ITC is often used at the district court. While not binding, the district court also has the benefit of the ITC's rulings on, for example, claim construction. In addition, nothing precludes a district court from granting alternative relief to a patent owner involved in a parallel ITC investigation, regardless of the ITC's final determination.31
Second, the ITC may continue to be popular with the implementation of the America Invents Act (AIA). To the extent that the new post-grant and inter partes review (respectively, PGR and IPR) procedures at the USPTO are useful, they will likely do little to prevent patent holders from pursuing relief at the ITC. In fact, as it has been in a more limited way with respect to inter partes reexamination, the USPTO may become a third venue in patent infringement disputes. On one hand, unlike inter partes reexaminations, IPR and PGR proceedings offer short timeframes like the ITC. Inter partes reexaminations typically took about 34 months to complete,32 but the USPTO must complete IPR and PGR proceedings within 12–18 months.33 Moreover, IPR and PGR proceedings appear to allow for fairly broad discovery, though the scope of that discovery remains to be seen after implementation by the USPTO.34 On the other hand, IPR and PGR proceedings are limited to invalidity determinations (and are further limited to anticipation and obviousness challenges in the case of IPR proceedings). And they do not stay parallel ITC proceedings while there may be a stay of parallel district court proceedings.35 Thus, although IPR and PGR proceedings may prove useful in some circumstances due to what may be pro-patent-challenger standards,36 they will not prevent patent holders from pursuing parallel ITC proceedings.
Another reason the ITC may continue to increase in popularity is that the difference between the district courts and the ITC regarding injunctive relief standards did not end with Spansion. In fact, the difference is expanding. Several recent Federal Circuit cases have made irreparable harm more difficult to establish, meaning that injunctive relief may now be harder to obtain in the district courts. And a new source of division regarding injunctive relief standards is emerging—FRAND (i.e., fair, reasonable, and non-discriminatory) licensing obligations relating to standards-essential patents (SEPs). Although this issue is still taking shape, at least two district courts have now declined to grant injunctive relief to patentees subject to FRAND obligations.37 By contrast, an administrative law judge in the ITC has ruled that FRAND obligations do not preclude ITC injunctive-type remedies.38 As discussed below, the ITC, as an agency, is now considering that issue.39
Before the injunction revolution began, the ITC and the district courts both technically required a threshold showing of harm before granting injunctive relief. Such a showing tended to be easy to establish.
The ITC, for example, required that a complainant show that the respondent's actions have "the effect or tendency . . . to destroy or substantially injure an industry . . . in the United States, or to prevent the establishment of such an industry, or to restrain or monopolize trade and commerce in the United States." 40 Out of 221 intellectual property cases between 1974 and 1987, the ITC found that only five failed to establish sufficient injury to a domestic industry.41 In 1988, Congress amended the statute, removing the injury requirement altogether.42 Harm (other than the harm infringement necessarily causes) is thus no longer a requirement at all for injunctive-type relief at the ITC.
District courts, however, still require irreparable injury to the patent owner in both the preliminary and permanent injunction contexts.43 Whereas the ITC eliminated the injury requirement, recent cases demonstrate that the irreparable harm showing at the district courts has taken a different trajectory, becoming progressively more difficult to establish. Prior to eBay, a successful showing of validity and infringement conclusively established irreparable harm.44 But eBay did not technically alter that rule, which left some lingering uncertainty regarding its continuing viability.45 Last year, however, the Federal Circuit put to rest any uncertainty. It declared unequivocally that "eBay jettisoned the presumption of irreparable harm as it applies to determining the appropriateness of injunctive relief." 46 Thus, an independent showing of irreparable harm is now required for a district court injunction.
What does a sufficient showing of irreparable harm require? Although this is still a developing standard, the Federal Circuit has provided several guideposts.47 In ActiveVideo,48 the Federal Circuit recently stated that "[s]traightforward monetary harm . . . is not irreparable harm." 49 For example, neither litigation costs nor a calculable loss of market share can serve as a predicate for irreparable harm.50 To the extent that "straightforward monetary harm" is relatively rare, this admonition may not be significant. In other words, monetary harm that is not straightforward (or that is mixed with other intangible harm, such as the loss of business relationships, for example) may still meet the irreparable harm requirement.51 An important aspect to succeed now in the irreparable harm inquiry is to demonstrate the breadth and not-exclusively-monetary nature of the harm suffered.
In Bosch,52 the Federal Circuit addressed the types of harms that can be considered irreparable. There, the court relied on three factors: (1) the existence of direct competition between the parties;53 (2) a loss of market share and potential customers (presumably of the incalculable variety);54 and (3) the potential inability of the infringer to satisfy a suitable monetary judgment.55 The first two factors were driven by concerns over patent hold-up, which should not be surprising. The Supreme Court's concern over this issue was what catalyzed the injunction revolution to begin with.56 That those concerns are now helping redefine the boundaries of injunctive relief standards is only natural. The third factor relied on by the Bosch court, however, fits rather oddly into the "irreparable harm" category. Instead, it appears to derive from the unavailability of alternative remedies at law—a separate prong of the injunctive relief test altogether. Thus, the irreparable harm consideration may be engulfing the overall injunctive relief inquiry.
And significantly, the Federal Circuit also recently announced that irreparable harm "require[s] a nexus between infringement of the patent and some market-based injury, be it as a result of consumer preference or some other kind of causal link." 57 The court elaborated that "[i]t is not enough for the patentee to establish some insubstantial connection between the alleged harm and the infringement . . . . The patentee must rather show that the infringing feature drives consumer demand for the accused product." 58 To the extent that the Federal Circuit's primary concern is patent hold-up, having such a rule makes sense. As the Federal Circuit said, the "causal nexus" can "inform[] . . . whether the patentee seeks to leverage its patent for competitive gain beyond [its] inventive contribution." 59 This is the very essence of patent hold-up. Unfortunately, there are no clear standards yet by which to judge the sufficiency of this "causal link." And for products containing a large number of patented features, which is especially common in electronic technologies, making the required showings may prove difficult.
On the other hand, the role of this new "causal nexus" requirement is not yet entirely clear.60 In Brocade Communications Systems, Inc. v. A10 Networks, Inc.,61 a district court recently expressed doubts as to whether "the causal nexus standard as articulated in Apple II should be required for all irreparable harms offered in support of a request for a permanent injunction." 62 The court noted "a curious absence of references to the causal nexus standard" in two recent Federal Circuit decisions addressing permanent injunctions,63 and suggested that the "causal nexus" standard might only apply in the context of a preliminary injunction. Nevertheless, that court did apply the causal nexus standard in its decision to issue a permanent injunction, finding "a clear causal nexus between [the plaintiff's] loss of exclusivity in its inventions and [the defendant's] infringement." 64 In so ruling, the court emphasized that the plaintiff practiced its patent, that the defendant was a direct competitor, and that the plaintiff had not licensed its patents.65
Given these new considerations, the absence of clear standards presents ongoing challenges. One such challenge is the danger of result-oriented rulings, which may depend in part on the nature of the litigants and their licensing and market activities. Although practitioners can do little to avoid this danger, they should recognize that NPEs may face heightened scrutiny and prepare accordingly. A more pragmatic challenge involves the relevant evidentiary showings. For example, the Federal Circuit noted in Apple II66 that the plaintiff's own survey evidence showed that the patented feature was not one of the top five reasons consumers purchased the accused product.67 Market survey evidence will thus likely take on a critical role in the future for proving irreparable harm, especially given the new "causal link" requirement. Moreover, in light of the factors relied on by the Bosch court, evidence of market share and company finances will likely take on increased importance as well. Although such evidence has always played an important role in damages analyses, it may now also fundamentally impact the injunctive relief calculus.
Although it may still be too early to assess the impact of these recent decisions on the irreparable harm requirement, the likelihood is that it will be significant. Because "[t]he standard for a preliminary injunction is essentially the same as for a permanent injunction,"68 district courts most likely must weigh irreparable harm in both preliminary and permanent injunction contexts.69 Moreover, though rarely sought, these new rules will likely apply to temporary exclusion order requests in the ITC, because the ITC applies the Federal Circuit's law of preliminary injunctions when deciding whether to grant preliminary relief.70 Thus, the only context in which the new irreparable harm standards will not govern will likely be permanent relief at the ITC.71
Another split may be emerging between the district courts and ITC regarding injunctive relief, in particular, over the availability of injunctive relief for SEP owners subject to FRAND obligations. Sitting by designation in the Northern District of Illinois, Judge Posner recently noted that "a patentee can't obtain an injunction . . . if either damages or an equitable substitute such as a running royalty would provide complete relief"—a point he considered "too obvious to require citation."72 In the SEP context, Judge Posner thus found that an injunction would not be available unless the alleged infringer refused to pay a royalty meeting the FRAND requirement.73 On the other hand, ALJ Gildea of the ITC stated that "the subject of Judge Posner's order . . . is inapposite, since it essentially concerns an election of remedies, . . . which is not the gravamen of [an ITC] investigation."74
It is still too early to tell exactly how this issue will develop, but Judge Crabb in the Western District of Wisconsin seems to be following Judge Posner's lead. She recently dismissed a plaintiff's claims with prejudice because setting a FRAND royalty rate "would likely be used simply as a starting point for future negotiations [and thus] does not satisfy the basic requirements for an injunction."75 This suggests that the district courts may be more concerned than the ITC that SEP owners will use court orders as bargaining chips at the negotiation table with their licensees.76 If this proves true more broadly, another class of plaintiffs—namely FRAND licensors—may begin more actively seeking relief at the ITC.
In the coming months, the ITC will likely determine whether, as an agency, it agrees with ALJ Gildea.77 As part of its review process, the Commission solicited public comments, first asking whether "the mere existence of a FRAND undertaking with respect to a particular patent preclude[s] issuance of an exclusion order based on infringement of that patent."78 It also asked "what framework [to] use[] for determining whether [an offer to license a patent to an accused infringer] complies with a FRAND undertaking."79
In response, several organizations, including Ericsson, Motorola Mobility, Qualcomm, the Innovation Alliance, and GTW Associates, stated that nothing should preclude the general availability of exclusion orders to SEP owners. A small-business consortium—the Association for Competitive Technology—disagreed. But it was not alone. In fact, tech giants, including Apple, Sprint, Intel, Verizon, Hewlett-Packard, and Cisco, provided comments arguing against the general availability of exclusion orders directed to FRAND-encumbered patents. And judging by the public comments it submitted to the ITC in a related investigation, the Federal Trade Commission (FTC) would agree.80
Much of the debate centers on patent hold-up. But it remains to be seen whether patent hold-up will affect the ITC's ultimate decision in any meaningful way. There appears to be little agreement as to whether a hold-up problem even exists in this context. For example, while the FTC contended that "hold-up can deter innovation by increasing costs and uncertainty for other industry participants,"81 Qualcomm asserted a "complete absence of real world evidence of hold-up."82 This may end up being seen as an abstract debate as opposed to being tethered to facts in the investigation the ITC is pursuing. But both sides of the debate agree on one thing: The opposition's position will destroy any and all incentives to create standards or to license SEPs. Anti-exclusion-order proponents argue that potential licensees will want nothing to do with SEPs if the owner can later use exclusion orders to bully them into unfair licensing terms.83 Thus, there will be no more standardization. By contrast, pro-exclusion-order proponents argue that no patent owner would agree to license its patent on FRAND terms unless exclusion orders are available.84 Otherwise, infringers will have no incentive to take a license. Thus, again, there will be no more standardization.
A middle ground addresses the framework under which the ITC would decide to implement investigations involving FRAND-encumbered patents. For example, even though Intel and the FTC argued against the general availability of exclusion orders for FRAND-encumbered patents, they recognized that certain exceptions should exist.85 Similarly, though Ericsson, Motorola Mobility, and Qualcomm argued for the general availability of exclusion orders for FRAND-encumbered patents, they, too, recognized that certain exceptions should exist.86 In fact, both sides of the debate agree that principles of contract law should govern FRAND compliance and cite to factors derived, in part, from contract principles—e.g., industry practice,87 evidence of good or bad faith,88 course of conduct,89 the public interest,90 and the intent or the SEP owner, as evidenced by the entire context of the FRAND agreement.91
The parties disagree over when these factors should be applied and who should apply them. Intel, for example, advocates that the district courts, not the ITC, should determine in advance whether a complainant has acted in accordance with its FRAND obligations. Only after a final, non-appealable decision that the patent owner has acted properly should it be allowed to seek an exclusion order in the ITC.92 This could leave potential foreign infringers immune when there is no personal jurisdiction. Recognizing this, Intel advocates for an exception where the in rem jurisdiction of the ITC is the only recourse for the SEP owner.93
Qualcomm, on the other hand, argues that the ITC is capable of handling the contract-related issues during the course of an investigation. To the extent a FRAND-based claim constitutes a defense,94 the ITC does have statutory authority to hear "[a]ll legal and equitable defenses."95 On the other hand, to the extent that a FRAND-based claim constitutes a counterclaim, the same does not hold true. By statute, "[i]mmediately after a counterclaim is received by the [ITC], the respondent raising such counterclaim shall file a notice of removal with a United States district court," but "[a]ction on such counterclaim shall not delay or affect the proceeding."96 In other words, the district court would hear the FRAND-based counterclaim, and the ITC proceeding would continue without taking action on the merits. Thus, exclusion orders would be available in all SEP-related ITC investigations, whether or not the complainant complied with its FRAND obligations.
The FTC has advanced a different position. It believes the ITC could exercise discretion in the enforcement of exclusion orders, forcing the parties to address those issues after concluding the investigation. Specifically, it suggests that the ITC can delay enforcement of an exclusion order until the parties enter mediation, placing the respective risk of enforcement or vacation of the order on a party that derails the mediation.97
Ultimately, Intel's position rests on the ITC's "broad discretion to refuse an Exclusion Order when such an order would harm the public interest." 98 The ITC, however, has rarely exercised such discretion. Rather, because a FRAND-based claim is essentially an argument based on equitable estoppel, the ITC may treat it as an affirmative defense, as advocated by Qualcomm. If the ITC proceeds this way, and does not rely on the district courts to first address the FRAND contract issues, the ITC may also choose to force mediation in appropriate cases, as recommended by the FTC.99 Proceeding this way would engage the parties, not the courts, in further FRAND negotiations, which may influence the ITC more than an abstract discussion of patent hold-up. In any event, changes may be coming in the injunctive-type relief available to FRAND-encumbered patent owners at the ITC.
As the injunction (r)evolution continues, this relief is becoming more difficult to obtain, especially in the district courts. The patent right as enforced in district courts is thus becoming less property-like and more liability-like. This is good news for those defending against patent lawsuits. The silver lining for patentees, however, is that the ITC continues, for now, to issue injunctive relief almost automatically whenever a valid patent (for which there is a domestic industry) is infringed. After all, the statute does not authorize the ITC to grant relief in the form of liability—only to enforce a property right. This ultimately explains why the split on injunctive relief standards between the ITC and the district courts exists. Whether this trend will continue, or whether the "public interest" will play more of a role at the ITC in issuing relief in the future, remain to be seen. Given the increasing external pressures being exerted on the ITC, changes to its relief standards are likely at some point. Far less certain are when and what those changes will be. But one thing seems clear: The (r)evolution of injunctive standards is not over yet.
1 35 U.S.C. § 154(a) (2006) (emphasis added).
2 http://www.uspto.gov/patents/resources/general_info_concerning_patents.jsp (emphasis added).
3 35 U.S.C. § 154(d)(1)(A)(i) (emphasis added).
4 A famous physics experiment, called the Stern-Gerlach experiment, demonstrated that certain physical traits of a quantum particle can be inherently indeterminate. Such particles may simultaneously occupy two or more seemingly incompatible natural states. Only when someone attempts to measure the trait does the particle's state "collapse" into one definitive value. The patent right is thus a "quantum" right. It is simultaneously property-like and liability-like until a court determines, in a particular context, that it is either one or the other, no longer both.
5 Mallinckrodt, Inc. v. Medipart, Inc., 976 F.2d 700, 707 n.6 (Fed. Cir. 1992).
6 See, e.g., eBay, Inc. v. MercExchange, LLC, 547 U.S. 388, 391 (2006); Apple, Inc. v. Samsung Elec. Co. (Apple II), No. 2012-1507 (Fed. Cir. Oct. 11, 2012); ActiveVideo Networks, Inc. v. Verizon Communc'ns, Inc., Nos. 2011-1538, -1567, 2012-1129, -1201 (Fed. Cir. Aug. 24, 2012); Apple, Inc. v. Samsung Elec. Co. (Apple I), 678 F.3d 1314 (Fed. Cir. 2011); Robert Bosch, LLC v. Pylon Mfg. Corp., 659 F.3d 1142 (Fed. Cir. 2011); Apple, Inc. v. Motorola Mobility, Inc., No. 11-cv-178-bbc (W.D. Wis. Nov. 2, 2012); Apple, Inc. v. Motorola, Inc., No. 1:11-cv-8540 (N.D. Ill. June 22, 2012), appeal docketed, Nos. 2012-1548, -1549 (Fed. Cir. July 30, 2012).
7 See eBay, 547 U.S. at 391.
8 Compare Smith Int'l, Inc. v. Hughes Tool Co., 718 F.2d 1573,1578–79 (Fed. Cir. 1983) (establishing the test for preliminary injunctive relief ) with Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 546 n.12 (1987) ("The standard for a preliminary injunction is essentially the same as for a permanent injunction with the exception that the plaintiff must show a likelihood of success on the merits rather than actual success."); accord eBay, 547 U.S. at 391 (2006). Technically, the only difference between the tests for preliminary and permanent injunctions is that likelihood of success on the merits is replaced by inadequacy of remedies available at law. See id. at 391.
9 eBay, Inc. v. MercExchange, LLC, 547 U.S. 388 (2006).
10 See id. at 395 ("This historical practice [of granting injunctive relief upon a finding of infringement in the vast majority of patent cases], as the Court holds, does not entitle a patentee to a permanent injunction or justify a general rule that such injunctions should issue." (emphasis in original)).
11 See Colleen V. Chien & Mark A. Lemley, Patent Holdup, the ITC, and the Public Interest 19 fig. 3 (Cornell Law Rev. 2012, Stanford Law Working Paper No. 2022168), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2022168. The statistics show a drop from a grant rate of about 95 percent pre-eBay to about 75 percent post-eBay.
12 Cease and desist orders, when issued, are only directed at named respondents over which the ITC has personal jurisdiction. 19 U.S.C. § 1337(f )(1).
13 See 19 U.S.C. § 1337(d), (f) (2006).
14 While the ITC's jurisdiction is in rem, the Federal Circuit held in 2008 that the ITC has "no statutory authority to issue an LEO against downstream products of non-respondents." Kyocera Wireless v. USITC, 545 F.3d 1340 (Fed. Cir. 2008). As a result, to obtain a LEO, the party must be a named respondent in the ITC investigation.
15 See Spansion v. ITC, 629 F.3d 1331, 1358 (Fed. Cir. 2010) ("The ITC responds that the Commission properly considered the public interest factors prior to issuing the exclusion order and that eBay does not apply to Commission remedy determinations.").
16 Id. at 1359 ("Given the different statutory underpinnings for relief before the Commission in Section 337 actions and before the district courts in suits for patent infringement, this court holds that eBay does not apply to Commission remedy determinations under Section 337.").
17 Spansion v. ITC, 629 F.3d 1331 (Fed. Cir. 2010).
18 Id. at 1359.
19 Note, however, Certain Video Displays and Products Using and Containing Same, 337-TA-828 (Int'l Trade Comm'n Aug. 1, 2012) (initial determination), in which the ALJ held that an earlier district court decision awarding a royalty for future infringement precluded an injunction in a later ITC investigation. The ALJ held that the ongoing royalty granted the respondent a license and termination the investigation. Id. at 15–21. The Commission is now reviewing that decision. See id. (Oct. 16, 2012) (commission notice).
20 See Chien & Lemley, supra note 10. In fact, the ITC has only refused to grant such relief on only three occasions, the last one occurring more than 25 years ago. Id. at 23.
21 See supra notes 2–3.
22 19 U.S.C. § 1337(d)(1) (2006).
23 See supra note 19 and accompanying text.
24 But see 35 U.S.C. § 283 (2006) ("The several courts having jurisdiction of cases under this title may grant injunctions in accordance with the principles of equity to prevent the violation of any right secured by patent, on such terms as the court deems reasonable.").
25 Chien & Lemley, supra note 10 at 12–13. The Federal Circuit has even condoned treating NPEs differently than other plaintiffs in the context of injunctive relief. See Abbott Laboratories v. Sandoz, Inc., 544 F.3d 1341 (Fed. Cir. 2008) ("At the preliminary injunction stage, the legal and equitable factors may be of different weight when the patentee is itself engaged in commerce, as contrasted with a patentee that is seeking to license its patent to others.").
26 Though beyond the scope of this article, an important distinction between ITC and district court patent litigation is the requirement for an ITC complainant to demonstrate a "domestic industry" relative to the asserted patent, a requirement for which there is no parallel in district court. Although some observers speculated that a domestic industry based solely on licensing activities may become more difficult to establish, the Federal Circuit recently put such speculation to rest. See Interdigital Commc'ns, LLC v. ITC, No. 2010-1093 (Fed. Cir. Jan. 10, 2013) (en banc) (per curiam) ("[S]ection 337 makes relief available to a party that has a substantial investment in exploitation of a patent through either engineering, research and development, or licensing. It is not necessary that the party manufacture the product that is protected by the patent, and it is not necessary that any other domestic party manufacture the protected article.").
27 Chien & Lemley, supra note 10, at 21.
28 19 U.S.C. § 1337(b)(1) (2006).
29 Peter S. Menell et al., Patent Case Management Judicial Guide § 1.1.3.3 (2d ed. 2012); see also 19 U.S.C. § 1337(b)(1) (1988) ("The Commission shall conclude any such investigation, and make its determination under this section, at the earliest practicable time, but not later than one year (18 months in more complicated cases) after the date of publication of notice of such investigation."). Although the specific time requirements were removed from § 1337 in 1994, see Uruguay Round Amendments Act of 1994, Pub. L. No. 103-465, § 321(a)(1)(B), 108 Stat. 4809, the timeline in practice has changed little.
30 See generally Menell et al., supra note 28, at § 2.2.6.2.1. Parties to a civil action who are also respondents to a parallel ITC action may request a stay as a matter of right, which terminates only after final determination by the ITC. 28 U.S.C. § 1659(a) (2006). A stay can eliminate judicial redundancy, save costs, and take advantage of agency expertise. If such a request is timely, a district court rarely refuses to stay the relevant portions of a case when the subject matter is sufficiently similar. Such a stay remains in place until the ITC determination can no longer be appealed. In re Princo, 478 F.3d 1345 (Fed. Cir. 2007).
31 Texas Instruments, Inc. v. Cypress Semiconductor Corp., 90 F.3d 1558, 1568–69 (Fed. Cir. 1996); Menell et al., supra note 28, at § 2.2.6.2.2.
32 Menell et al., supra note 28, at § 4.6.4.1.
33 Leahy-Smith America Invents Act, Pub. L. No. 112-29 § 6, 125 Stat. 302, 309 (2011) (to be codified at 35 U.S.C. §§ 316, 326) (requiring that "final determination in [such a] review be issued not later than 1 year after . . . the institution of a review, . . . except that the Director may, for good cause shown, extend the 1-year period by not more than 6 months").
34 Id. (requiring "the deposition of witnesses submitting affidavits or declarations" and "what is otherwise necessary in the interest of justice").
35 See id. at Stat. 325.
36 IPR and PGR will use a preponderance of the evidence and broadest reasonable claim construction standards, and they will not be subject to a presumption of validity.
37 See Apple, Inc. v. Motorola Mobility, Inc., No. 11-cv-178-bbc (W.D. Wis. Nov. 2, 2012); Apple, Inc. v. Motorola, Inc., No. 1:11-cv-8540 (N.D. Ill. June 22, 2012), appeal docketed, Nos. 2012-1548, -1549 (Fed. Cir. July 30, 2012).
38 See Certain Elec. Devices, Including Wireless Commc'ns Devices, Portable Music and Data Processing Devices, and Tablet Computers, No. 337-TA-794 (Int'l Trade Comm'n Sept. 14, 2012) (initial determination and recommended determination on remedy and bond).
39 See Notice of Comm'n Determination to Review the Final Initial Determination Regarding USITC Investigation No. 337-TA-794, 77 Fed. Reg. 70464, 70465 (Nov. 26, 2012).
40 19 U.S.C. § 1337(a) (1982).
41 Tracy Lea Sloan, Comment, The 1988 Trade Act and Intellectual Property Cases Before the International Trade Commission, 30 Santa Clara L. Rev. 293, 304 (1990).
42 See Omnibus Trade & Competitiveness Act of 1988, Pub. L. 100-418, § 1342(a)(1).
43 Compare eBay, Inc. v. MercExchange, LLC, 547 U.S. 388, 391 (2006) with Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008) and Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 542 (1987).
44 Smith Int'l, Inc. v. Hughes Tool Co., F.2d 1573,1581 (Fed. Cir. 1983) ("[W]here validity and continuing infringement have been clearly established, . . . immediate irreparable harm is presumed.") (footnote omitted).
45 See, e.g., Broadcom Corp. v. Qualcomm, Inc., 543 F.3d 683, 702 (Fed. Cir. 2008) ("It remains an open question whether there remains a rebuttable presumption of irreparable harm following eBay."); Abbott Laboratories v. Andrx Pharm., Inc., 452 F.3d 1331, 1347 (Fed. Cir. 2006) ("[W]e conclude that [the plaintiff ] has not established a likelihood of success on the merits. As a result, [it] is no longer entitled to a presumption of irreparable harm.").
46 Robert Bosch, LLC v. Pylon Mfg. Corp., 659 F.3d 1142, 1149 (Fed. Cir. 2011).
47 The district courts have also relied on a number of factors, but they are far from united on which ones matter and how to apply them. Just to name a few, the district courts have evaluated injunctive relief based on (1) whether the patentee is a practicing entity, (2) whether the plaintiff and defendant are in direct competition with one another, (3) whether the patentee was unwilling to license the invention, (4) whether the patented feature is important to the overall accused product, (5) whether the defendant has gained an unfair market advantage over non-infringing competitors, (6) whether infringement was willful, (7) whether an irreversible loss of market share occurred, (8) whether some harm to the plaintiff's reputation occurred, (9) the difficulty of calculating damages for future infringement, and (10) whether an injunction will bankrupt the infringer. If, when, and how much each of these affects the irreparable harm calculus in a given case are still works in progress.
48 ActiveVideo Networks, Inc. v. Verizon Communc'ns, Inc., Nos. 2011-1538, -1567, 2012-1129, -1201 (Fed. Cir. Aug. 24, 2012).
49 Id., slip op. at 44 (emphasis added).
50 See id. at 44–46.
51 See, e.g., i4i Ltd. Partnership v. Microsoft Corp., 598 F.3d 831, 862 (Fed. Cir. 2010) ("[A] small company was practicing its patent, only to suffer a loss of market share, brand recognition, and customer goodwill as the result of the defendant's infringing acts. Such losses may frequently defy attempts at valuation, particularly when the infringing acts significantly change the relevant market.").
52 Robert Bosch, LLC v. Pylon Mfg. Corp., 659 F.3d 1142 (Fed. Cir. 2011).
53 See id. at 1153 ("Although the parties dispute the finer details of the nature and extent of their competition, we agree with Bosch that the undisputed facts show that it competes with Pylon in all of the market segments identified by the parties.").
54 See id. at 1154 ("Here, Bosch made a prima facie showing of lost market share, and Pylon proffered no evidence to rebut that showing.").
55 See id. at 1155 ("While the burden of proving irreparable harm was of course Bosch's, Pylon's failure to submit rebuttal evidence regarding its ability to satisfy an award of money damages is troublesome given the procedural history of this case.").
56 See eBay, Inc. v. MercExchange, LLC, 547 U.S. 388, 396–97 (2006) (Kennedy, J., concurring) ("In cases now arising trial courts should bear in mind that in many instances the nature of the patent being enforced and the economic function of the patent holder present considerations quite unlike earlier cases. An industry has developed in which firms use patents not as a basis for producing and selling goods but, instead, primarily for obtaining licensing fees. For these firms, an injunction, and the potentially serious sanctions arising from its violation, can be employed as a bargaining tool to charge exorbitant fees to companies that seek to buy licenses to practice the patent. When the patented invention is but a small component of the product the companies seek to produce and the threat of an injunction is employed simply for undue leverage in negotiations, legal damages may well be sufficient to compensate for the infringement and an injunction may not serve the public interest. In addition injunctive relief may have different consequences for the burgeoning number of patents over business methods, which were not of much economic and legal significance in earlier times. The potential vagueness and suspect validity of some of these patents may affect the calculus under the four-factor test." (citations omitted)).
57 Apple, Inc. v. Samsung Elec. Co. (Apple I), 678 F.3d 1314, 1327 (Fed. Cir. 2011).
58 Apple, Inc. v. Samsung Elec. Co. (Apple II), No. 2012-1507, slip op. at 8 (Fed. Cir. Oct. 11, 2012).
59 Id. at 7.
60 See, e.g., Petition for Initial Hearing En Banc, Apple, Inc. v. Samsung Elec. Co., Nos. 2013-1129, -1146 (Fed. Cir. Jan. 16, 2013) (requesting that the Federal Circuit resolve preliminary and permanent injunctive relief standards in patent cases, particularly the causal nexus requirement).
61 Brocade Commc'ns Sys., Inc. v. A10 Networks, Inc., No. C 10-3428 PSG (N.D. Cal. Jan. 10, 2013).
62 Id., slip op. at 6.
63 Presidio Components, Inc. v. Am. Tech. Ceramics Corp., Nos. 2010-1355, 2011-1089 (Fed. Cir. Dec. 19, 2012); Edwards LifeSciences AG v. CoreValve, Inc., Nos. 2011-1215, -1257 (Fed. Cir. Nov. 13, 2012).
64 Brocade, slip op. at 2.
65 Id. at 9.
66 Apple, Inc. v. Samsung Elec. Co., No. 2012-1507 (Fed. Cir. Oct. 11, 2012).
67 See id., slip op. at 11.
68 Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 546 n.12 (1987); accord Robert Bosch, LLC v. Pylon Mfg. Corp., 659 F.3d 1142, 1148 n.3 (Fed. Cir. 2011) (citing Amoco for this proposition); Abbott Laboratories v. Sandoz, Inc., 544 F.3d 1341, 1364 (Fed. Cir. 2008) (citing Amoco for this proposition); eBay, Inc. v. MercExchange, LLC, 547 U.S. 388, 391 (2006) (citing Amoco twice regarding for this proposition); but see Mytee Prods., Inc. v. Harris Research., Inc., 439 Fed. App'x. 882, 888 (Fed. Cir. 2011) (non-precedential) ("There are significant differences in the requirements and uses of preliminary and permanent injunctions."); Lermer Germany GmbH v. Lermer Corp., 94 F.3d 1575 (Fed. Cir. 1996) ("[Preliminary and permanent injunctions] are distinct forms of equitable relief that have different prerequisites and serve entirely different purposes."); accord eBay, Inc. v. MercExchange, LLC, 547 U.S. 388, 391 (2006) (citing Amoco twice for this proposition).
69 But see supra notes 62–64 and accompanying text.
70 19 C.F.R. § 210.52(a) (2012) ("In determining whether to grant temporary relief, the [ITC] will apply the standards the [Federal Circuit] uses in determining whether to affirm lower court decisions granting preliminary injunctions.").
71 See Spansion v. ITC, 629 F.3d 1331, 1358 (Fed. Cir. 2010) ("The legislative history of the amendments to Section 337 indicates that Congress intended injunctive relief to be the normal remedy for a Section 337 violation and that a showing of irreparable harm is not required to receive such injunctive relief.").
72 Apple, Inc. v. Motorola, Inc., No. 1:11-cv-8540, slip op. at 34 (N.D. Ill. June 22, 2012), appeal docketed, Nos. 2012-1548, -1549 (Fed. Cir. July 30, 2012). But see 35 U.S.C. § 154(d)(1) (2006) ("In addition to [the right to exclude others], a patent shall include the right to obtain a reasonable royalty." (emphasis added)).
73 Id. at 18.
74 Certain Elec. Devices, Including Wireless Commc'ns Devices, Portable Music and Data Processing Devices, and Tablet Computers, No. 337-TA-794, slip op. at 461 (Int'l Trade Comm'n Sept. 14, 2012) (initial determination and recommended determination on remedy and bond).
75 Apple, Inc. v. Motorola Mobility, Inc., No. 11-cv-178-bbc, slip op. at 4 (W.D. Wis. Nov. 2, 2012).
76 Compare id. at 2 ("I questioned whether it was appropriate for a court to undertake the complex task of determining a FRAND rate if the end result would be simply a suggestion that could be used later as a bargaining chip between the parties.") and Apple, Inc. v. Motorola, Inc., No. 1:11-cv-8540, slip op. at 21 (N.D. Ill. June 22, 2012), appeal docketed, Nos. 2012-1548, -1549 (Fed. Cir. July 30, 2012) ("You can't obtain an injunction . . . on the ground that you need the injunction to pressure the defendant to settle your damages claim on terms more advantageous to you than if there were no such pressure.") with Certain Elec. Devices, Including Wireless Commc'ns Devices, Portable Music and Data Processing Devices, and Tablet Computers, No. 337-TA-794, slip op. at 462 (Int'l Trade Comm'n Sept. 14, 2012) (initial determination and recommended determination on remedy and bond) ("[I]f the ITC were precluded from [issuing injunctions], an infringing party could, by making unrealistic counter-offers to the patent holder, while claiming that such counter-offers more accurately reflect FRAND than the offers proposed by the patent holder, hold up or frustrate Section 337 investigations.").
77 The Court of Appeals for the Federal Circuit is also poised to hear arguments on the propriety of issuing injunctions when FRAND-encumbered patents are at issue. See Apple, Inc. v. Motorola, Inc., No. 1:11-cv-8540 (N.D. Ill. June 22, 2012), appeal docketed, Nos. 2012-1548, -1549 (Fed. Cir. July 30, 2012).
78 Notice of Comm'n Determination to Review the Final Initial Determination Regarding USITC Investigation No. 337-TA-794, 77 Fed. Reg. 70464, 70465 (Nov. 26, 2012).
79 Id.
80 See Public Comments of the FTC at 3, USITC Investigation No. 337-TA-745 (June 6, 2012); see also Brief of Amicus Curiae Federal Trade Commission Supporting Neither Party, Apple, Inc. v. Motorola, Inc., Nos. 2012-1548, -1549 (Fed. Cir. Dec. 14, 2012). The USPTO and the Antitrust Division at the Department of Justice recently echoed the FTC's position in a joint policy statement to the ITC. See U.S. Dep't of Justice and U.S. Patent & Trademark Office, Policy Statement on Remedies for Standards-Essential Patents Subject to Voluntary F/RAND Commitments, U.S. Dep't of Justice (Jan. 8, 2013), http://www.justice.gov/atr/public/guidelines/290994.pdf.
81 Id.
82 Public Comments of Qualcomm, Inc. at 7, USITC Investigation No. 337-TA-794 (Dec. 10, 2012).
83 See Public Comments of Business Software Alliance at 4, USITC Investigation No. 337-TA-794 (Dec. 3, 2012) ("If holders of standards-essential patents are able to seek exclusion orders (despite promises to the contrary), then companies likely will respond by forgoing the development or adoption of new standards.").
84 See Public Comments of Motorola Mobility, L.L.C. at 15, USITC Investigation No. 337-TA-794 (Dec. 3, 2012) ("Depriving innovators of an established remedy against an unwilling licensee who may engage in a successful 'hold out' creates a disincentive to participate and contribute in the future.")
85 See, e.g., Public Comments of Intel, Inc. at 1, USITC Investigation No. 337-TA-794 (Dec. 3, 2012) ("Intel submits that the public interest should generally preclude an Exclusion Order on SEPs that are subject to a FRAND commitment, except in limited circumstances.")
86 See, e.g., Public Comments of Qualcomm, Inc. at 9, USITC Investigation No. 337-TA-794 (Dec. 3, 2012) ("While it is correct that [a] . . . FRAND commitment . . . does not waive or exclude injunctive relief against an unlicensed infringer, it is also well recognized that a court . . . may decline to issue an injunction when the infringer would in fact be licensed but for the failure of the patentee to comply with its FRAND commitment.").
87 Compare Public Comments of Ericsson, Inc. at 3, USITC Investigation No. 337-TA-794 (Dec. 3, 2012) ("[Evidence relevant to FRAND compliance] will include . . . the relevant industry's norms for patent licensing.") with U.C.C. § 1-303(c) (2008) ("A 'usage of trade' is any practice or method of dealing having such regularity of observance in a place, vocation, or trade as to justify an expectation that it will be observed with respect to the transaction in question. The existence and scope of such a usage must be proved as facts. If it is established that such a usage is embodied in a trade code or similar record, the interpretation of the record is a question of law.") and Restatement (Second) of Contracts § 202(5) (1981) ("Wherever reasonable, the manifestations of intention of the parties to a promise or agreement are interpreted as consistent with each other and with any . . . usage of trade.").
88 Compare Public Comments of Ericsson, Inc. at 3, USITC Investigation No. 337-TA-794 (Dec. 3, 2012) ("[Evidence relevant to FRAND compliance] will include . . . the patent holder's efforts to conclude a license[] and the accused infringer's willingness to enter into good-faith negotiations.") and Public Comments of the Apple, Inc. at 32, USITC Investigation No. 337-TA-794 (Dec. 3, 2012) ("[I]t cannot be that a good faith disagreement places the implementer at risk of an injunction.") with U.C.C. § 1-304 (2008) ("Every contract or duty within the Uniform Commercial Code imposes an obligation of good faith in its performance and enforcement.") and Restatement (Second) of Contracts § 205 (1981) ("Every contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement.").
89 Compare Public Comments of Motorola Mobility, L.L.C. at 5, USITC Investigation No. 337-TA-794 (Dec. 3, 2012) ("[T]here are a number of facts that could inform a tribunal as to whether there has been a breach of the FRAND commitment, and the entire course of conduct between the parties should be evaluated.") with U.C.C. § 1-303(b) (2008) ("A 'course of dealing' is a sequence of conduct concerning previous transactions between the parties to a particular transaction that is fairly to be regarded as establishing a common basis of understanding for interpreting their expressions and other conduct.") and Restatement (Second) of Contracts § 202(5) (1981) ("Wherever reasonable, the manifestations of intention of the parties to a promise or agreement are interpreted as consistent with each other and with any . . . course of dealing.").
90 Compare Public Comments of Apple, Inc. at 6, USITC Investigation No. 337-TA-794 (Dec. 3, 2012) ("When a FRAND patent holder seeks an injunction, it upsets the FRAND bargain—and harms the public interest.") and Public Comments of Qualcomm, Inc. at 8, USITC Investigation No. 337-TA-794 (Dec. 3, 2012) ("[A] blanket rule eliminating the availability of exclusion orders against unlicensed infringers of patents subject to a FRAND commitment would be contrary to the public interest.") with Restatement (Second) of Contracts § 207 (1981) ("In choosing among the reasonable meanings of a promise or agreement or a term thereof, a meaning that serves the public interest is generally preferred."). But see 19 U.S.C. § 1337(d)(1) (defining by statute five factors routinely referred to as the "public interest factors" in ITC proceedings).
91 Compare Public Comments of Qualcomm, Inc. at, USITC Investigation No. 337-TA-794 (Dec. 3, 2012) ("Because a FRAND commitment is a creature of contract, its content-like that of any contract-must be found by means of ordinary principles of contract interpretation, looking first to the plain meaning of the agreement, and then, where not clearly answered by the agreement's plain language, to the intention and understanding of the parties who formed the contract at the time of formation.") and Public Comments of GTW Assocs. at 4–5, USITC Investigation No. 337-TA-794 (Dec. 3, 2012) ("In either instance the key point of departure for the ITC and for any further analysis is 1) the exact statement the owner of a patent has made, 2) the timing of that statement and 3) the context of that statement with respect to any applicable Intellectual Property policy or procedure of a relevant standards developing organization.") with Restatement (Second) of Contracts § 5(1) (1981) ("A term of a promise or agreement is that portion of the intention or assent manifested which relates to a particular matter.") and id. § 202(1) ("Words and other conduct are interpreted in the light of all the circumstances, and if the principal purpose of the parties is ascertainable it is given great weight.").
92 Public Comments of Intel, Inc. at 1, USITC Investigation No. 337-TA-794 (Dec. 3, 2012).
93 Id.
94 Public Comments of Qualcomm, Inc. at 10–11, USITC Investigation No. 337-TA-794 (Dec. 3, 2012).
95 19 U.S.C. § 1337(c) (2006).
96 Id.
97 Public Comments of the FTC at 4, USITC Investigation No. 337-TA-745 (June 6, 2012).
98 Public Comments of Intel, Inc. at 1, USITC Investigation No. 337-TA-794 (Dec. 3, 2012).
99 Public Comments of the FTC at 4, USITC Investigation No. 337-TA-745 (June 6, 2012).
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