Of the many problems for inventors in the patent system, the most significant is our inability to get injunctions. But without injunctions inventors can have no exclusive right to their inventions as the Constitution provides for:
Section 8 – Powers of Congress…
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
Therefore, securing the ‘exclusive right’ of inventors is not just a power of the federal government, but a core responsibility. James Madison and other founders regarded it as ‘the first object of government’. Without injunctions theft is permitted to continue and even condoned if not encouraged.
The only bill we know of which makes an effort to correct the problem does so by attempting to force the 4 factor test of SCOTUS more nearly back to the prior established rule of the CAFC (which we believe was far more just and Constitutionally correct) where the courts would ‘issue permanent injunctions against patent infringement absent exceptional circumstances’, by eliminating the first 2 factors. But that still leaves the last 2 factors which falls far short of the CAFC standard as had been the law for decades. Those last 2 factors are…
(3) that considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and
(4) that the public interest would not be disserved by a permanent injunction
As to number 3, often times an injunction will be inconvenient for infringers. No doubt they will argue it would place an extreme hardship on them. However, as the court will have already entered a finding of infringement, why should it matter if the infinger is inconvenienced? Returning stolen property to its rightful owner is always inconvenient…for thieves. In the case of private property and in our view, inconvenience of thieves should never be a consideration for enforcing justice. To do so would be a great injustice. Which is more important, justice or convenience to thieves? We believe this is clear error by the courts. It is wholly inconsistent with fundamental American ideals.
Keep in mind, often times defendants have several months or even years to negotiate with inventors prior to any time when an injunction can be issued. If they cant come to terms in that amount of time, clearly an injunction is necessary to force them to the bargaining table with a more determined mindset to negotiate in good faith. Seldom is there any reasoning to be done with thieves, short of at gunpoint.
That reminds us of a passage in Mark Twain’s ‘Roughing It’ where a passenger in a stagecoach who when during a rest stop accidentally shot a cow of a nearby rancher expressed no interest in compensating the owner until the rancher came out with a shotgun and convinced him otherwise. In contrast, infringement is seldom if not rarely accidental.
As to number 4, it is also possible that injunctions may be an inconvenience to some in the public, but again which is more important, justice or convenience? Though an injunction may be an inconvenience to some in the public, the continued access to new technologies a strong patent system, as supported by a just issue of injunctions, will far outweigh any isolated and temporary inconvenience to some in the public. No doubt, any unmet demand in commerce will readily be filled by enterprising, industrious, and honest American businesses either under license with the inventor or in partnership with. As James Madison wrote over 200 years ago in Federalist No. 43 , “The right to useful inventions seems with equal reason to belong to the inventors. The public good fully coincides in both cases with the claims of the individuals.”
We stand ready to provide assistance to all our friends in Congress to draft wording for such a measure to effectively restore the Constitutionally recognized and guaranteed right of injunctions to inventors.