Injunctive Relief For Standard Essential Patents

In many patent suits, patent holders seek injunctive relief to prevent an accused infringer from continuingto practice the patented invention. Whether an injunction can be granted depends on various considerations a judge may weigh under her equitable powers. These considerations may become complicated when the patent is a standard-essential patent (SEP) encumbered by a commitment to license the SEP on fair, reasonable, and non-discriminatory (FRAND) terms.

Background of SEPs and FRAND Terms

An SEP is a patent whose subject matter is essential for compliance with an industry standard. Standard Setting Organizations (SSOs) set industry standards to ensure interoperability and efficiency of technologies in an industry. Participants in SSOs typically enter into an agreement to disclose their SEP patents and license such patents on FRAND terms.² Two problems that may occur with SEPs are patent "hold-up" and patent "hold-out." Patent "hold-up" occurs when an SEP