The Public Interest Inquiry for Permanent Injunctions or Exclusion Orders: Shedding the Myopic Lens

P. Andrew Riley and Scott A. Allen · 17 Vand. J. Ent. & Tech. 3

Abstract

President Obama’s 2013 veto of a US International Trade Commission (ITC) exclusion order, issued to address Apple Inc.’s infringement of a patent owned by Samsung, thrust the ITC’s public interest inquiry into the spotlight. Historically, however, these factors rarely weighed against a remedy at the ITC. Likewise, US district courts have rarely declined to issue a permanent injunction after finding a patent valid and infringed due solely to the public interest factor—the last of the four factors that the Supreme Court put in place in eBay Inc. v. MercExchange, L.L.C. More recent decisions addressing the public interest in both forums, however, show a willingness by the adjudicators to weigh both traditional public interest issues, such as health and well-being, and non-traditional arguments, such as public reliance and environmental concerns, against a patent owner’s right to exclude. In this Article, we examine some of the successful traditional and non-traditional public interest arguments, both at the ITC and in US district courts. From this analysis, the Article outlines how parties involved in high stakes patent litigation in either forum can craft public interest arguments to combat the threat of a permanent injunction or an ITC exclusion order.