Injunctions have traditionally been granted nearly automatically in case of infringement of valid patents. Patentees have realised however that injunctions or merely injunctions threats may be an excellent tool to extract royalties that largely exceed the value of patented inventions. It has become more and more clear that injunctive relief should not always be available. In eBay v. MercExchange, the US Supreme Court adopted a test that allows for greater flexibility in administering injunctions. This decision has attracted a lot of attention in many jurisdictions. This chapter is a comparative overview of various approaches to injunctive relief. It looks at various approaches towards injunctions and various defences available to patent implementers against patentees who demand injunctions. The chapter advocates for various means of flexibility in granting injunctions.
Patent pledges, and particularly FRAND commitments made within the context of standard-setting, have attracted growing attention in the European Union. The European Commission dealt with FRAND pledges in its decisions in Motorola and Samsung and previously in Rambus. Questions relating to abuse of dominant position through refusal to license a FRAND pledged patent were also addressed by the Court of Justice of the European Union in a dispute between two Chinese companies: ZTE and Huawei. The concerns addressed in the above-mentioned European cases are similar to the concerns raised in leading non-European jurisdictions, such as the US as well as Japan, China and South Korea. Users of technologies protected by pledged patents, especially SEPs subjected to FRAND commitments made within the standard-setting context, usually invest substantial resources in order to implement such technologies. As a result of their investment the implementers are locked in to such technologies and therefore may be forced to accept unfavorable licensing terms offered by patent owners when threatened with injunctions.