Bard v Gore: to injunct, or not to injunct, what is the question? Is it right to reward an infringer for successfully exploiting a patent?

Abstract

Robert Lundie-Smith is a barrister and solicitor and practises as a Solicitor Advocate in EIP Legal, London. Gary Moss is a solicitor and the head of EIP Legal, London.

The application of the United States Supreme Court ruling in eBay v MercExhange, as exemplified in the recent decision of the Court of Appeals for the Federal Circuit (CAFC) in Bard Peripheral Vascular Inc v W L Gore & Associates Inc, has far reaching implications for patentees looking to enforce their rights in the US against infringers who have managed to make a successful business out of their infringing acts.

This article analyses and compares the position of patentees in the UK and the US seeking to obtain a final injunction against an infringer.

It will be seen that, post eBay, the position of a patentee before the US courts is far weaker than that of patentees before UK courts.