John M. Golden
90 Texas L. Rev. 1399
Injunctions have often been viewed as mere “off switches” that prevent future violations of rights protected by so-called property rules. But injunctions in fact come in a variety of forms, with different objects, scopes, and degrees of effectiveness. In practical situations, an injunction might amount to little more than a threat of higher-than-normal monetary sanctions delivered at substantially higher-than-normal speed.
This Article builds on these insights by investigating the potential and actual scopes of injunctions against patent infringement. An economic model for infringer incentives shows how concerns of injunction scope are substantially analogous to widely examined concerns of patent scope. A new taxonomy provides named classifications for different forms of injunctions. A systematic study of patent-infringement injunctions issued by U.S. district courts in 2010 indicates how often these different forms appear in practice. Startlingly, this study suggests that the majority of such patent-infringement injunctions take an “obey the law” form that violates the Federal Rules of Civil Procedure, at least as the U.S. Court of Appeals for the Federal Circuit has traditionally understood those rules. In another indication of patent law’s technology specificity, only 12% of the injunctions directed to biomedical-substance technology feature such error. Meanwhile, courts frequently issue specially tailored injunctions that protect patent rights more or less than a conventional “do not infringe” order would. Prophylactic injunctions and other specially tailored injunctions should be recognized as legitimate forms of relief that can enable better balancing of concerns of notice, rights protection, rights limitation, and administrability.