Patent Injunctions and Repeat Offenders

[Commentary] Strong patent rights protected by legal injunctions offers the best way to organize the patent system.

These injunctions in effect prevent outsiders from lifting protected technology from a patent holder against his will. This protection, in turn, forces people to acquire licenses in order to exercise a technology that is covered by someone else's patent. Strategic delays send terrible signals throughout the patent system. Long before any case is tried, inventors may be more reluctant to put their talents to use if they know that competitors can remain in the market for years with an infringing device. Infringers, for their part, will be embolden, for the job of setting damages is sufficiently perilous, the defendant who infringes could easily come out ahead of any competitors who take licenses from patentees. Innovators are in short supply; imitators are not. The law should in these cases favour the former over the latter -- for the good of us all.

[Epstein is the Laurence A. Tisch Professor of Law, New York University School of Law, the Peter and Kirsten Bedford Senior Fellow, The Hoover Institution, and the James Parker Hall Distinguished Service Professor, The University of Chicago.]