Injunctions on patents and other intellectual property

Selected U.S. Patent Injunction Cases

2017. Wisconsin Alumni Research Foundation v. APPLE, INC., Dist. Court, WD Wisconsin 2017

At the end of the day, the court concludes that WARF has not met its burden of demonstrating irreparable harm, and even if it had, the balance of equities and the public interest both weigh in favor of denying entry of a permanent injunction. If the court were to enter an injunction, Apple would have to disable the LDS Predictor, which would likely prevent Apple from using non-infringing features, including features covered by Apple’s own patents. Most importantly, until an alternative, non-infringing alternative can be incorporated into the iPhone, removing the LSD Predictor may well deprive the public of all of the technology contained in that product, not just the infringing technology.

2017. Nichia Corp. v. Everlight Americas, Inc., 855 F. 3d 1328 – Court of Appeals, Federal Circuit 2017

The district court held a bench trial and found that Everlight infringed all three patents and had failed to prove by clear and convincing evidence that the asserted claims of the three patents are invalid. . . .. Despite finding the patents valid and infringed, the court refused Nichia’s request for prospective relief in the form of a permanent injunction. The court explained that “Nichia has not demonstrated that Defendants’ past and continuing infringement of Nichia’s Patents has caused, and will continue to cause, irreparable harm to Nichia.” It also reasoned that monetary damages could adequately compensate Nichia for Everlight’s infringement. The court thus concluded that Nichia was not entitled to injunctive relief. . . . .

We discern no error in the court’s conclusions that Everlight infringed all asserted claims and failed to prove those claims invalid by clear and convincing evidence. We also conclude that the court did not abuse its discretion in denying Nichia’s request for a permanent injunction. We therefore affirm.

2017. POLARA ENGINEERING, INC. v. CAMPBELL COMPANY, Dist. Court, CD California 2017

Finally, the public interest also weighs in favor of granting a permanent injunction. The public has a strong interest in maintaining the integrity of the patent system by enforcing a patent owner’s right to exclude. . . .
Polara’s motion for a permanent injunction is GRANTED.

2017. AMGEN INC. v. SANOFI, Dist. Court, D. Delaware 2017

The public generally is better served by having a choice of available treatments. Therefore, the court finds itself between a rock and a hard place, i.e., being a patent holder and a verdict winner should be a meaningful factor in the balancing test, but taking an independently developed, helpful drug off the market does not benefit the public. “[T]he touchstone of the public interest factor is whether an injunction, both in scope and effect, strikes a workable balance between protecting the patentee’s rights and protecting the public from the injunction’s adverse effects.” i4i Ltd. P’ship v. Microsoft Corp., 598 F.3d 831, 863 (Fed. Cir. 2010), aff’d, 564 U.S. 91 (2011). The court concludes that the public interest of having a choice of drugs should prevail. This factor weighs in favor of defendants. . .

Conclusion. For the aforementioned reasons, plaintiffs have demonstrated irreparable harm, as well as the inadequacy of money damages. The public interest factor weighs in favor of defendants. Plaintiffs’ motion for a permanent injunction (D.I. 336) is granted. Given the ramifications of an injunction, the court will delay its imposition for thirty (30) days to allow defendants the opportunity to appeal and request expedited review of this ruling by the Federal Circuit, and/or to encourage the parties to reach an appropriate business resolution.

2017. EI DuPONT DE NEMOURS AND COMPANY v. UNIFRAX I LLC, Dist. Court, D. Delaware 2017

Defendant argues that an injunction would harm the public interest because the public is better off with a multiple-supplier market for products affecting public safety. Defendant provides some evidence that Plaintiff may have had supply issues with its product. (Tr. 1528:13-1535:17). Plaintiff provides evidence that suggests that there would not be a public safety issue. (Tr. 838:13-840:4, 490:1-503:13, 1528:11-1535:17, 1564:2-1571:20). Overall, I am not concerned with Plaintiffs ability to supply its product. Even if there were concerns, it could still be appropriate to award an injunction. See WBIP, LLC v. Kohler Co., 829 F.3d 1317, 1343 (Fed. Cir. 2016) (“Congress has expressly indicated that injunctions may be granted in cases involving lifesaving goods, such as pharmaceutical drugs.”). It is also the case that “copies of patented inventions have the effect of inhibiting innovation and incentive.” Douglas, 717 F.3d at 1346. Guarding against such copies could foster the development of more technologies aimed at enhancing public safety. Overall, the public interest leans towards a grant of a permanent injunction.

Plaintiff meets the four-factor test in eBay. The request for a permanent injunction is granted.

2016. WBIP, LLC v. Kohler Co., 829 F. 3d 1317 – Court of Appeals, Federal Circuit 2016

The district court’s decision is based on its reasoning that having more manufacturers of a lifesaving good in the market is better for the public interest. But this reasoning is true in nearly every situation involving such goods, such that, if it alone is sufficient, it would create a categorical rule denying permanent injunctions for life-saving goods, such as many patented pharmaceutical products. As the Supreme Court has warned, categorical rules regarding permanent injunctions are disfavored.

2015. Warsaw Orthopedic, Inc. v. NuVasive, Inc., 778 F. 3d 1365 – Court of Appeals, Federal Circuit 2015

We vacate Warsaw’s damages award and remand for a new trial on damages consistent with this opinion. At the new trial, Warsaw will be limited to a reasonable royalty and cannot recover lost profits.


Canadian Patents: Injunction available against infringer of a Canadian patent where owner of the patent does not practice the invention in Canada, Perley-Robertson, Hill & McDougall, LLP/s.r.l. May 12, 2016

Selected India Patent Injunction Cases

2018. Patent Injunction and the Public Interest in India, 40 EIPR 55-58 (2018).

2017. The future of patent-based injunctions in doubt in India after explosive Delhi High Court ruling, February 17, 2017.

Bayer has failed to block an Indian generic rival from exporting an erectile dysfunction drug in a case that one observer says breaks new ground in considering how to weigh public interest issues relating to the grant or not of patent-based injunctions.

2017. Balaji Subramanian, Bayer v. Ajanta: DHC Erects New Jurisprudence on Public Interest for Injunctions, Spicy IP, February 11, 2017.

Justice RK Gauba quoted extensively from Franz Xaver Huemer to hold that in light of the facts before him, the balance of convenience favoured Ajanta. More importantly, he found that the “self-interest of the patentee” had to be “balanced against the larger public interest”. What’s interesting here is the way in which Justice Gauba conceptualises “public interest”. While Indian courts have historically viewed “public interest” in pharma patent litigation as the interests of the patients who need access to the patented drug, this order denies injunctive relief on the ground that it would lead to “not only loss of employment, but revenue to the state as well”.

2017. Bayer Intellectual Property Gmbh V. Ajanta Pharma Ltd & Ors, Hon’ble Mr. Justice R.k.Gauba, Order January 4, 2017

The plaintiff is unable to refute the documents submitted by the first defendant indicating that the impugned products were launched in 2009-2010 and after manufacture in its facilities in India (not Delhi) have been exported to various countries under the export license duly granted, since 2009. In these circumstances, though the non-user cannot be set up as a defence to the suit for infringement, upon the self-interest of the patentee being balanced against the larger public interest, equity demands that absolute or unconditional temporary injunction be not granted inasmuch as it would result in the manufacturing activity and the resultant exports of the impugned products of the defendant being ground to a halt resulting possibly in not only loss of employment but revenue to the State as well.

Selected ECJ Patent Injunction Cases

Selected Japan Patent Injunction Cases


Dr Constanze LinnebachAugust 2017, The Enforcement of Standard Essential Patents in Germany, a Stocktaking, DLA Piper, August 2017.

Klaus Haft, Dr. Ralph Nack, Dr. Anja Lunze LL.M., Dr. Clemens-August Heusch, Dr. Stefan Schohe, Björn Joachim. “Injunctions in cases of infringement of IPRs,” Answers to Question 2019, Germany. AIPPI, May 10, 2011.

KEI Blogs, etc

2008. ACTA provisions on Injunctions and Damages: Will the European EPAs or ACTA restrict or outlaw TRIPS Part III compulsory licenses? September 21, 2008, letter to Sanford McCoy, USTR; Rachel Bae, USTR and Amanda Wilson, DOC.