Not so long ago, courts bent over backwards to stop patent infringements. Judges enjoined these infringements almost automatically.
Then, in May 2006, the Supreme Court decided eBay, Inc. v. MercExchange, LLC and held that patent cases must be treated like all other civil suits. Judges could impose injunctions only if the moving party satisfied the traditional four-part test for equitable relief.
On the other hand, it is quite difficult to get an injunction when the patentee is a non-practicing entity (NPE), which merely licenses the patent for others to use. "In those cases, many courts have shifted away from granting injunctions, because the patentee can be adequately compensated by monetary damages," says Maurice Ross, a partner at Barton Barton & Plotkin.
Cases often fall somewhere between the two ends of this spectrum--direct competition and mere licensing--making it difficult to forecast a patentee's likelihood of obtaining an injunction. "It is all very fact specific," says McKeon.
When a patentee wins at the ITC, it will almost certainly receive injunctive relief. But there are other reasons patent owners are increasingly turning to the commission. Imports to the U.S. have skyrocketed thanks to globalization, so ITC remedies can be used far more often. And the ITC's speed is attractive, particularly for patentees eager to stop competitors or boost their leverage in patent license negotiations.