By Katherine E. White
America’s ability to innovate at a rapid pace is an important factor in staying competitive in the global marketplace. Currently, one of the most powerful remedies available for non-manufacturing patentees and patent marketers is the injunction, which makes it possible to immediately stop an alleged infringer from its prohibited activities. Manufacturers may hinder America’s ability to innovate at a rapid pace, by trying to drastically change the patent laws to make them more favorable to patent owners who develop their inventions into products for commercial sale at the expense of those who do not. One proposed change in the patent laws would eliminate the injunction, allowing a manufacturer to continue to infringe, drag out the litigation, and pay the reasonable royalty rate if it loses the infringement suit. Monetary damages are often inadequate to compensate for infringement because the alleged infringer is able to gain market share while the litigation is pending.
Without exclusive rights and the ability to define the metes and bounds of one’s invention, others would wait for an invention to take place, steal it, and use it for their own. If the injunctive power of the courts is eliminated, a leading case stated that the express purpose of the Patent Clause of the U.S. Constitution, to promote the progress of science and innovation, would be seriously undermined. Patent laws historically have been, and should continue to be, used to promote innovation and the progress of science, not manufacturing.
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