Injunctions are still being overwhelmingly granted and patent access in the US is still strong

Patrick Murray, and Roberta Lam; Nirav Desai is a director in the trial and appellate practice group, and the electronics practice group, at Sterne Kessler Goldstein & Fox PLLC.; Patrick Murray is the manager of business development and analytics at the firm.; Roberta Lam is a student at the University of Arizona’s James E. Rogers College of Law. She was a 2023 summer associate at Sterne Kessler.; A Look At US Injunctive Relief Trends Amid UPC Chatter; https://www.sternekessler.com/news-insights/publications/look-us-injunctive-relief-trends-amid-upc-chatter/

U.S. courts determine whether a permanent injunction is appropriate using the test from the 2006 Supreme Court decision in eBay Inc. v. MercExchange LLC. Under this test, the proponent must prove that: It has suffered an irreparable injury; Legal remedies are insufficient compensation; A remedy in equity is necessary; and A permanent injunction would not be counter to public policy.[2] Under eBay, the Supreme Court has held that the Patent Act does not create a predisposition for the granting of permanent injunctions. Rather, the court has firmly held that the equity principles of injunctive relief apply in patent cases as it does in any other cases. From 2022-2023, U.S. courts have granted 22 out of 38 utility patent cases a permanent injunction, which is roughly 58%. U.S. Trends and Exceptions An analysis of data from Docket Navigator reveals a recent uptick in both the number of motions for preliminary injunctions as well as the frequency that these motions are granted in patent cases. It’s important to note that these trends appear to be driven in large part by anti-counterfeiting cases involving design patents filed against so-called John Doe defendants, particularly in the U.S. District Court for the Northern District of Illinois. At the same time, the analysis underscores the extent to which persuasive arguments can secure preliminary injunctions despite the legal headwinds against plaintiffs receiving this type of relief. Similar Docket Navigator data shows that in patent cases that have gone to trial, courts grant motions for permanent injunctions in a majority of cases. Despite this trend in outcomes, plaintiffs have tended to seek injunctive relief after trial in fewer cases over the past several years, perhaps suggesting that only the strongest arguments for permanent injunctions are being presented to judges. The circumstances of the case are important as well. U.S. courts will carve out exceptions for injunctive relief if there is sufficient evidence to call into question the ability of both parties’ ability to return to the status quo. For example, appellate courts have repeatedly recognized that injunctions may be “appropriate based on barriers to collectability after judgment,” as per the 2017 SAS Institute Inc. v. World Programming Ltd. decision in the U.S. Court of Appeals for the Fourth Circuit.[3] Courts will examine the defendant’s assets and take into account obligations owed by insolvents when determining whether monetary damages is an available remedy.[4] Finally, the U.S. is a particularly favorable venue for design patents. From 2022-2023, 62 out of 69 design patents were granted a preliminary injunction, roughly 90%. This is an increase from 2021-2022, where 43 out of 56 design patents were granted a preliminary injunction, roughly 77%. For the design patents that were taken to trial in 2022 and 2023, 81 out of 83 design patents were granted a permanent injunction, which is roughly 98%. This is also an increase from 2021-2022, where 48 out of 56 design patents were granted a permanent injunction, roughly 92%. Concluding Remarks While the predicted availability of injunctive relief is one reason the UPC is the hottest topic in intellectual property circles at the moment, recent trends suggest that the U.S. is still a great destination for injunctive relief in many situations. The U.S. represents a significant share in terms of gross domestic product — even when compared to the combined UPCA signatory states ($26.9 trillion vs. $15.5 trillion)[5] — which makes it a venue of economic importance that cannot be ignored.