The Court of Appeals for the Federal Circuit, in a footnote and with reliance on judicial precedent, has sanctioned post-judgment infringement after denying injunctive relief by ordering an infringer to pay an ongoing royalty. The Patent Statute provides no guidance with respect to how that ongoing royalty should be determined, and the Federal Circuit has offered no such guidance. Instead, the Federal Circuit has strongly urged the parties to negotiate their own royalty for post-trial infringement.
Prior to the U.S. Supreme Court’s 2006 decision in eBay v. MercExchange, a patent owner in a successful patent infringement action obtained injunctive relief almost as a matter of routine. Under prior Federal Circuit decisions, the successful patent owner was entitled to an injunction, absent a sound reason for denying it.
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