Burley J and A Lang, 'Ongoing Patent Infringement: Is Injunctive Relief an Inevitable Outcome?'

Consider a case where a court makes a finding of patent infringement for a small feature in a complex product, such as a smartphone. Should an injunction inevitably be granted where that breach is ongoing? Australian courts to date have not had to answer this problem. In normal cases of patent infringement it would be, although the basis for the normal approach is not clear. In this article we propose a theoretical framework for the normal approach that lies in an analogy being made between the grant of relief in respect of ‘special property’ and injunctions in patent cases. We then extend that analogy to propose a limited circumstance in which an injunction for ongoing patent infringement might be refused based on principles of unjust enrichment. The article commences with consideration of the approach taken in the United States (US) and the United Kingdom (UK) to similar problems, before concluding that neither offers a solution applicable in Australian law, and then turning to the ‘special property’ analogy.

The full text of this paper is available in the the November 2018 issue of the Journal of Equity:
Burley J and A Lang, 'Ongoing patent infringement: Is injunctive relief an inevitable outcome?' (2018) 12 (No 2) Journal of Equity, pp. 132-150