B --- Enforcement
Mark D. Janis ’99, Robert A. Lucas Chair of Law and Director of the Center for Intellectual Property Research at Indiana University teaching intellectual property law, “Second Tier Patent Protection,” 40 Harvard International Law Journal 151, pgs 182-183, 1999, https://www.repository.law.indiana.edu/facpub/543, Accessed 7-17-2024 by NT-RS
Fundamentally, because a second tier patent regime shifts responsibility for the determination of "soft" obviousness to the judicial process, each trial of a second tier patent, invariably involving an exhaustive validity attack, is potentially more complicated than a corresponding trial of a regular patent. 7 4 It also seems unlikely that any responsible second tier regime would confer a statutory presumption of validity on second tier patent owners, or impose an elevated standard of proof for overcoming any such presumption. 1 75 [footnote omitted]
Worse yet, it seems improbable that a court operating under established principles of equity jurisprudence would be willing to grant preliminary injunctive relief on a claim of alleged infringement of a second tier patent. Federal Circuit jurisprudence requires a regular patent owner to establish a likelihood of success on the merits on validity as part of the showing for preliminary injunctive relief, notwithstanding the presumption of validity. 76 Making such a showing for a second tier patent would be extraordinarily difficult. 177 The virtual elimination of temporary relief may be devastating to SMEs, who might otherwise have turned to the preliminary injunction as a lowcost source of leverage in eventual settlement negotiations.