A vicious patent war is raging. Apple, Sony, Motorola, HTC, Samsung and others involved in the smartphone industry are asserting that their rivals are infringing their patents, and they are filing numerous actions against one another in order to stop the sale of their competitors’ allegedly infringing smartphones.
But obtaining an injunction against a patent infringer isn’t easy. Following the U.S. Supreme Court’s 2006 decision in eBay v. MercExchange, which toughened the standard for granting such injunctions, the courts have become much more hesitant to enjoin ongoing infringements.
The ITC is not required to stop the import of infringing products. On the contrary, when the agency determines some product infringes a U.S. patent, it must consider the public interest before it can exclude further imports of the infringing product. The ITC is required, by 19 U.S.C. Section 1337(d)(1), to take into account “the effect of such exclusion upon the public health and welfare, competitive conditions in the United States economy, the production of like or directly competitive articles in the United States, and United States consumers.”
In the future, therefore, an infringer seeking to limit the scope of an ITC exclusion order should provide detailed evidence of how the exclusion order would affect third-party businesses and competition in the U.S. market. The infringer also should show how many consumers would be affected and how badly these consumers would be affected, Kubasta says.