Does a Non-Competing Patentee have a Right to Exclude?
) (Centre for Competition Policy, University of East Anglia) Abstract Courts have traditionally granted injunctive relief ‘automatically’ upon finding infringement of valid patents on the basis that it is the essence of the patent right to exclude others. But the U.S. Supreme Court signalled a change in 2006 when they vacated the Federal Court’s order granting injunction against eBay for willfully infringing valid patents of MercExchange. The ruling comes at a time when the debate on what have pejoratively been called ‘patent trolls’ have taken centre stage. This paper examines the issues connected to patent trolls and analyses cases post-eBay to study the effect that eBay has had on patent infringement litigation. The analysis shows that the economic status of the patentee and the nature of the patent itself can adversely affect the exclusive rights granted by the patent. This is because non-competing patentees and a patent which covers only a small component of the overall product ar
