Injunctions enforcing a patentee's right to exclude provide an incentive to invent; however, injunctions are only effective if they can be enforced. Enforcing an injunction becomes problematic when other jurisdictions are involved, yet plaintiffs request such injunctions despite the potential inherent difficulties of cross-border enforcement. The author empirically analyzes the number and types of cross-border injunctions issued in the United States against foreign entities by discussing methods of enforcing injunctions abroad and the difficulties inherent in those methods. Comparing cases of cross-border injunctions issued by European courts, the author reviews the controversial pan-European injunction that covers not only the territory of other countries but also other countries' patents. The author notes that while U.S. injunctions cross borders, they do not extend to foreign patents, whereas pan-European injunctions extend to domestic and foreign patents. Moreover, defendants may raise design-around arguments in injunction proceedings, which would require courts to decide whether the new product still infringes the patent, even though courts prefer not to interpret foreign patent claims and their scope. Recent case law suggests that courts should not adjudicate foreign patent infringements. In conclusion, the author encourages ongoing debate about international solutions that support a system for effective cross-border patent enforcement.
Emerging Scholars Series: Cross-Border Injunctions in U.S. Patent Cases and Their Enforcement Abroad,
13 Marq. Intellectual Property L. Rev. 331
Available at: https://scholarship.law.marquette.edu/iplr/vol13/iss2/5