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Mar. 2, 2023

IAM: A comeback for injunctions would help to revive US patent leadership by Joff Wild

Civil litigation in common law countries will always attract bad faith players. The costs involved and the time it can take to see a dispute through to the end are ripe for abuse. This is particularly so in the US. It happens in personal injury cases, in ones relating to employment, the environment and health; and it also happens in those where patents are the focus.

Trolls – entities that seek to leverage the cost of litigating patents and the lack of a loser pays regime to secure cash from parties that would have to pay more to defend themselves than they would to settle – are an undoubted fact of life in the US. There is no getting away from that. A legal and policy judgement call, therefore, is how far you allow their conduct to shape the ability of everyone else to seek justice.

Ever since the Supreme Court’s 2006 decision in eBay v MercExchange, the tendency of the US courts and of legislators has been to prioritise the curtailing of what they perceive to be the activities of the bad apples over the ability of all patent holders to protect and assert their IP. This is despite a lack of any meaningful evidence that genuine trolls are a significant problem.

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