Injunctive relief in a patent infringement action is statutorily permitted under 35 U.S.C. § 283, which states: “The several courts having jurisdiction of cases under this title may grant injunctions in accordance with the principles of equity to prevent the violation of any right secured by patent, on such terms as the court deems reasonable.” Typically, injunctive relief, which is the adjudicated determination of a patent owner’s right to “exclude” others from practicing their invention, is identified in the complaint filed by the patent owner charging patent infringement of an enforceable patent. Putting an end to unauthorized competition for the remaining term of a patent is often the most valuable relief available to the patent owner, even more valuable than monetary damages ultimately assessed for past infringement.

“Preliminary” injunctive relief, i.e., relief before a full adjudication of the case on the merits, has been as available in patent cases as in other types of litigation. Courts are, however, appropriately cautious in granting such motions, before a full trial where all relevant evidence that has been gathered over many months of discovery can be presented. Courts have consistently held that a preliminary injunction is “extraordinary” relief and place strict conditions on the granting of such relief. Indeed, some courts have held the standard for granting a preliminary injunction in a patent case to be “unusually stringent.” Further, a preliminary injunction is issued only for the purpose of preserving the status quo and protecting the respective rights of the parties pending a final disposition of the litigation.

In order to obtain a preliminary injunction, the patent owner must establish the following elements:

The patent owner must come forward with evidence as to each element, since the patent owner has the burden of proving he is entitled to the preliminary injunction. The court must weigh and measure each factor in light of the relief requested While each of these elements is entitled to consideration, it is clear that if the patent owner fails to establish elements (1) and/or (2), the court need not even consider elements (3) and/or (4). See, for example, Reebok International Ltd, v. J Baker Inc. (32 F3d 1552, 31 USPQ2d 1781 (Fed. Cir. 1994).

Presumptions can be raised with the strong establishment of other elements. Irreparable harm may be presumed where there is a likelihood of success on the merits (assuming that the patent is not presently licensed to others, which would signal to the court that the patent owner has a perfectly adequate remedy at law in the form of money damages, and therefore does not require injunctive relief). Evidence of prior adjudication of the subject patent may also raise a presumption of validity, which has the effect of shifting the ultimate burden of production to the accused infringer on this issue.

Courts also consider, for example, (1) whether there was any delay by the patent owner in seeking injunctive relief and (2) the effectiveness of money damages to compensate a patent owner for market loss, along with the ability to pay such damages.

Additionally, in balancing hardships, the court will weigh the magnitude of the threatened injury to the patent owner, in the light of the strength of the showing of likelihood of success on the merits, against the injury to the accused infringer if the preliminary decision is in error.

Finally, public policy favors the protection of the rights secured by valid patents. Thus, courts view this last element in light of this policy. However, courts have held that the focus of the analysis of this element should be whether there exists some critical public interest that would be injured by the grant of preliminary relief.

The consideration of these issues complicates the procedure for seeking and obtaining a preliminary injunction. A failure of proof as to any one of these elements can, in and of itself, serve as a basis for denying a preliminary injunction.