Designing Around A Patent Injunction: En Banc Federal Circuit To Review Standards Applicable In Contempt Proceedings
By Lawrence Gotts and Elizabeth Roesel
In its ongoing effort to clarify and expound upon various patent law doctrines, the Federal Circuit has granted a petition for en banc rehearing, this time to review the standards applicable when a patentee moves for contempt of an injunction that enjoins an adjudicated infringer from engaging in further acts of infringement. Dating back at least as early as 1985, these standards seek to strike a balance among the competing interests of the patent owner, who has already obtained a favorable judgment, the interests of the adjudicated infringer who seeks to design around the patent, as well as the interests of the courts in curtailing endless litigation. The en banc court will consider both the procedural issue of when summary contempt proceedings are appropriate, and the substantive issue of when an adjudicated infringer should be found in contempt.