Notes on limitations to injunctions in the United States

The following are selected examples of U.S. law practices in the enforcement of intellectual property rights, with a particular emphasis on cases where there are limits on injunctive relief.

Government Use

The US law has a special provision for goverment use of inventions protected by copyright, patent and certificate plant variety, limiting the remedies available to the recovery of damages. The flexibility contained in the first part of article 44.2 of the TRIPS Agreement seems to respond to this US law.

28 USC 1498 establishes, for example for patents, that:

"(a) Whenever an invention described in and covered by a patent of the United States is used or manufactured by or for the United States without license of the owner thereof or lawful right to use or manufacture the same, the owner’s remedy shall be by action against the United States in the United States Court of Federal Claims for the recovery of his reasonable and entire compensation for such use and manufacture" 

“(b) Whenever the copyright in any work protected under the copyright laws of the United States shall be infringed by the United States, by a corporation owned or controlled by the United States, or by a contractor, subcontractor, or any person, firm, or corporation acting for the Government and with the authorization or consent of the Government, the exclusive action which may be brought for such infringement shall be an action by the copyright owner against the United States in the Court of Federal Claims for the recovery of his reasonable and entire compensation as damages for such infringement"

Civil nuclear energy


Copyright law

Section § 512 of the US copyright law (U.S. Capitol. TITLE 17 > CHAPTER 5 > § 512) contains also certain limitations on liability relating to material online.

Trademark Law: Innocent infringement

Section § 1114 of the US Commerce and Trade Law U.S. Capitol. TITLE 15 > CHAPTER 22 > § 1114) contains remedies limitations in cases of trademark infringment by printers & publishers

"(C) Injunctive relief shall not be available to the owner of the right infringed or person bringing the action under section 1125 (a) of this title with respect to an issue of a newspaper, magazine, or other similar periodical or an electronic communication containing infringing matter or violating matter where restraining the dissemination of such infringing matter or violating matter in any particular issue of such periodical or in an electronic communication would delay the delivery of such issue or transmission of such electronic communication after the regular time for such delivery or transmission, and such delay would be due to the method by which publication and distribution of such periodical or transmission of such electronic communication is customarily conducted in accordance with sound business practice, and not due to any method or device adopted to evade this section or to prevent or delay the issuance of an injunction or restraining order with respect to such infringing matter or violating matter."