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Patent Injunctions After eBay: The Bidding Is Open on Who Really Benefits

By William R. Overend

When faced with the threat of a crippling injunction, many businesses would rather pay for a patent license than spend millions litigating an uncertain result. This simple principle lies at the heart of what has been called the 'licensing-by-litigation' model, and has led to numerous battles over patent rights.

The battle lines have become particularly acute in cases involving companies that do not make or sell products, but claim patent rights to core technologies used throughout an industry. Such companies often threaten permanent injunctive relief against accused infringers as a tactic for negotiating higher fees for patent licenses. To the extent their chances of actually obtaining an injunction are diminished, so are their chances of securing a license through threats of litigation.

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