Public policy’s involved.
Smith ’21 [Henry E.; March; Fessenden Professor of Law and Director of the Project on the Foundations of Private Law, Harvard Law School; Notre Dame Law Review, “Putting the Equity Back into Intellectual Property Remedies,” 96 Notre Dame L. Rev. 1603, Lexis] jchen
The traditional rules of thumb had to do with inadequacy of the legal remedy. Inadequacy of the legal remedy is a complex congeries of considerations of difficulty of valuation, inconveniences of repeated litigation, potential undermining of the right, and so on.22 The trigger for equity here would be the inadequacy of the legal remedy (which could stem from a variety of factors). Although this has been regarded as a vacuous “rule” because one can find examples of almost any kind of situation leading to an injunction,23 there is more to say in favor of this trigger for equity.24 As I have argued elsewhere, inadequacy of the legal remedy (or alternatively irreparable injury) is best regarded as a trigger for a complex equitable analysis. It shows that we have entered meta-law, where a different, more interactive and openended style of analysis is exceptionally called for.25 Also relevant to an injunction would be disproportionate hardship—does the injunction visit far more harm on the enjoined party than the small benefit it affords the movant? A range of third-party effects are also relevant, sometimes traveling under the heading of public policy. And key to the availability of an injunction or a defense would be the good faith and absence of unclean hands on the part of anyone seeking to benefit from any equitable remedy or defense.