A Handbook of Contemporary Research
Edited by Toshiko Takenka
Chapter 20: Compulsory Licensing Under TRIPS and the Supreme Court of the United States’ Decision in eBay v. MercExchange
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...
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