Table of Contents

Patent Law and Theory

Patent Law and Theory

A Handbook of Contemporary Research

Research Handbooks in Intellectual Property series

Edited by Toshiko Takenka

This major Handbook provides a comprehensive research source for patent protection in three major jurisdictions: the United States, Europe and Japan. Leading patent scholars and practitioners join together to give an innovative comparative analysis both of fundamental issues such as patentability, examination procedure and the scope of patent protection, and current issues such as patent protection for industry standards, computer software and business methods. Keeping in mind the important goal of world harmonization, the contributing authors challenge current systems and propose necessary changes for promoting innovation.

Chapter 20: Compulsory Licensing Under TRIPS and the Supreme Court of the United States’ Decision in eBay v. MercExchange

Christopher A. Cotropia

Subjects: business and management, knowledge management, innovation and technology, knowledge management, law - academic, intellectual property law

Extract

Christopher A. Cotropia* 1 Introduction The compulsory licensing of patents is a contentious issue in international patent law. Various countries support the practice as necessary to ensure access to socially beneficial technologies. Other countries disfavor compulsory licensing because of the harm it inflicts on the incentive to invent and creation of the very technology at issue. The dispute over whether and when a government may issue a compulsory license has focused, in part, on the Agreement on Trade-Related Aspects of Intellectual Property Rights (‘TRIPS’).1 Questions have arisen since TRIPS’ adoption as to the circumstances under which TRIPS makes compulsory licensing available to Member States. Recently, the dispute as to when unauthorized use of a patented invention should be allowed has also arisen under United States patent law in a unique context. Traditionally in the United States a patentee was awarded a permanent injunction preventing unauthorized use by an adjudged infringer as a matter of course. In 2006, the issuance of permanent injunctions in essentially all patent cases was revisited by the Supreme Court of the United States in eBay Inc. v. MercExchange L.L.C.2 The Supreme Court decided the statute that gave courts the power to issue an injunction, 35 U.S.C. § 283, required the usage of a four-factor equitable test to decide whether an injunction should be awarded. As a result of this opinion, injunctions have been denied by United States district courts in at least seven cases, allowing the infringer to continue practicing the patented technology without the patentee’s...

You are not authenticated to view the full text of this chapter or article.

Elgaronline requires a subscription or purchase to access the full text of books or journals. Please login through your library system or with your personal username and password on the homepage.

Non-subscribers can freely search the site, view abstracts/ extracts and download selected front matter and introductory chapters for personal use.

Your library may not have purchased all subject areas. If you are authenticated and think you should have access to this title, please contact your librarian.

Further information