IF YOU BUILD A BUSINESS ON AN INFRINGING PRODUCT YOU CAN'T COMPLAIN WHEN AN INJUNCTION DESTROYS THE BUSINESS

Acumed LLC, v. Stryker Corporation, [2008-1124] (December 30, 2008) [LOURIE, Mayer, Gajarsa] The Federal Circuit affirmed the grant of a permanent injunction.
DISCUSSION: Following eBay, a patentee must satisfy the well-established four-factor test for injunctive relief before a court may grant a permanent injunction. The Federal Circuit reviews the grant of a preliminary for abuse of discretion. Abuse of discretion may be found on a showing “that the court made a clear error of judgment in weighing relevant factors or exercised its discretion based upon an error of law or clearly erroneous factual findings.”
The Federal Circuit said that the essential attribute of a patent grant is that it provides a right to exclude competitors from infringing the patent. In view of that right, infringement may cause a patentee irreparable harm not remediable by a reasonable royalty. The Federal Circuit said that the fact that a patentee has previously chosen to license the patent may indicate that a reasonable royalty does compensate for an infringement, that is but one factor for the district court to consider. The fact of the grant of previous licenses, the identity of the past licensees, the experience in the market since the licenses were granted, and the identity of the new infringer all may affect the district court’s discretionary decision concerning whether a reasonable royalty from an infringer constitutes damages adequate to compensate for the infringement.