Injunctive Relief and the FRAND Commitment in the United States
This chapter analyzes the ability of a holder of standard-essential patents (SEPs) that has committed to license its SEPs on fair, reasonable, and nondiscriminatory (FRAND) terms to request and obtain injunctive relief in a U.S. court. I analyze whether, as a matter of contract interpretation, the FRAND commitment precludes the SEP holder from seeking an injunction in court. I then examine the legal standards that U.S. courts apply when deciding whether to grant an injunction, and I evaluate whether an SEP holder is likely to obtain an injunction against an infringer of SEPs. I also analyze the SEP holder’s ability to request and obtain an exclusion order from the International Trade Commission (ITC)—a remedy that blocks the importation and sale in the United States of products that infringe a valid U.S. patent. Finally, I analyze whether the SEP holder’s request for an injunction or exclusion order could expose the SEP holder to liability under U.S. antitrust law.