Standards-Essential Patents And Injunctive Relief

In a series of fast-moving and interrelated developments involving courts and competition authorities in many regions and countries, holders of patents deemed "essential" to industry standards are finding their ability to obtain injunctive relief for infringement of those patents under challenge.

Traditionally, in most significant jurisdictions around the world, the plaintiff in a patent infringement action can seek an injunction preventing the accused infringer from continuing to practice the inventions claimed in the patent, as well as monetary damages in the form of lost profits or a reasonable royalty.

Recently, however, some litigants, commentators, and others have expressed the view that when an asserted patent is a standards-essential patent ("SEP") encumbered with a fair, reasonable, and non-discriminatory ("FRAND") licensing commitment, the patent holder should be prevented from obtaining injunctive relief. Otherwise, these proponents argue, the patent