Compulsory Licensing of Non-Practicing Patentees after eBay v. MercExchange

I have an article in the Virginia Journal and Law and Technology examining the regime of compulsory licensing for patentees who do not commercialize their patents in the aftermath of the U.S. Supreme Court’ 2006 decision eBay Inc. v. MercExchange, L.L.C.

See Compulsory Licensing of Non-Practicing Patentees after eBay v. MercExchange.

As is well known, eBay ended the Federal Circuit’s practice of automatically granting permanent injunctions for patent infringement, after which non-practicing patentees are less likely to obtain injunctive relief.  The article examines the Second Circuit’s approach of denying injunctions to non-practicing patentees, which was a counterpoint to many Federal Circuit cases’ approach prior to eBay, denying injunctions and awarding a compulsory license equal to a “reasonably royalty” for a license to the patent.  That approach has been re-invigorated by Justice Kennedy’s concurrence in eBay and subsequent U.S. District Court cases.

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