Chapter 14: Injunctive relief in patent cases in the US, Germany and Japan: Recent developments and outlook
Until 2006, permanent injunctive relief was considered an obvious and – absent rare and extraordinary circumstances – quasi-automatic remedy available for patentees upon prevailing in an infringement lawsuit. Over the last decades, technological development resulted in products across many industries no longer being covered by only one patent or maybe a handful of patents. Rather, products became the result of a vast number of inventions covered by hundreds or even thousands of patents. The most notable examples are products in the semiconductors industry, which are often covered by hundreds of patents for the semiconductor chip’s circuit layout, improving materials, changing packaging, etc. Major players in affected industries started to acquire large patent portfolios, often referred to as patent thickets, not only to protect their inventions, but also to accumulate a portfolio sufficiently large to exclude competitors from manufacturing, for example, semiconductors, thereby establishing a basis for complex cross-licensing of infringed patents. While cross-licensing and forming patent pools for certain standard technologies developed as a workable solution for patent thickets amongst active players with similar investments and stakes, the dynamics of the patent negotiations changed with the increasing frequency of non-manufacturing patentees seeking to enforce their patents.
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