Home | Databases | WorldLII | Search | Feedback Edited Legal Collections Data

Cotropia, Christopher A. --- "Compulsory Licensing Under TRIPS and the Supreme Court of the United States’ Decision in eBay v. MercExchange" [2009] ELECD 255; in Takenka, Toshiko (ed), "Patent Law and Theory" (Edward Elgar Publishing, 2009)

Book Title: Patent Law and Theory

Editor(s): Takenka, Toshiko

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781845424138

Section: Chapter 20

Section Title: Compulsory Licensing Under TRIPS and the Supreme Court of the United States’ Decision in eBay v. MercExchange

Author(s): Cotropia, Christopher A.

Number of pages: 27

Extract:

20 Compulsory licensing under TRIPS and the
Supreme Court of the United States'
Decision in eBay v. MercExchange
Christopher A. Cotropia*



1 Introduction
The compulsory licensing of patents is a contentious issue in international
patent law. Various countries support the practice as necessary to ensure
access to socially beneficial technologies. Other countries disfavor compul-
sory licensing because of the harm it inflicts on the incentive to invent and
creation of the very technology at issue. The dispute over whether and when a
government may issue a compulsory license has focused, in part, on the
Agreement on Trade-Related Aspects of Intellectual Property Rights
(`TRIPS').1 Questions have arisen since TRIPS' adoption as to the circum-
stances under which TRIPS makes compulsory licensing available to Member
States.
Recently, the dispute as to when unauthorized use of a patented invention
should be allowed has also arisen under United States patent law in a unique
context. Traditionally in the United States a patentee was awarded a perma-
nent injunction preventing unauthorized use by an adjudged infringer as a
matter of course. In 2006, the issuance of permanent injunctions in essentially
all patent cases was revisited by the Supreme Court of the United States in
eBay Inc. v. MercExchange L.L.C.2 The Supreme Court decided the statute
that gave courts the power to issue an injunction, 35 U.S.C. § 283, required the
usage of a four-factor equitable test to decide whether an injunction should be
awarded. As a result of ...