Opinion: Why proportionality is key for patent injunctions

By Vanessa Bailey

This article originally appeared in ManagingIP

Vanessa Bailey, global director of IP policy at Intel Corporation, urges lawmakers to carefully balance the interests of different parties and the public when considering whether an injunction is an appropriate remedy

Injunctions are patent law’s most extreme remedy for infringement, taking products off the market and distorting the competitive landscape. They can put companies out of business. Because of the risk of these harms, patent injunctions should be reserved for those specific situations where less extreme remedies would not be effective in redressing the harm a patent owner actually suffered. 

In modern high-technology markets, a proportional approach to injunctions is not just desirable but necessary if innovation is to succeed. Today, many thousands or even tens of thousands of patents might apply to a single product, making patent clearance assessments for many products impossible as a practical matter. If injunctions were easily available, any one of those thousands of patent holders could use the threat of market exclusion to demand excessive payments from the manufacturer, far beyond the technical value of the patented invention or the harm the patent holder suffered. 

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