eBay, the Right to Exclude, and the Two Classes of Patent Owners

The entire point of a healthy patent system is on spurring invention and investment, by rewarding inventor and investor alike, big or small, with exclusive rights of limited duration, for their inventive risks and contributions. Otherwise, without such patent rights—or with fewer such rights—the incentives to invent diminish, or such inventive resources will re-locate. With that backdrop, we address the disparate-treatment problem that currently defines the U.S. patent system. Those entities that manufacture a product claimed by a patent, and successfully enforce that patent in court, often still obtain an injunction, consistent with the “right to exclude others” that Congress granted to “[e]very patent.”4 But for nearly 15 years, those entitles that invest in invention rights and buy and license patents—be they university research arms or non-practicing licensing entities (NPEs or socalled “trolls”)—often haven’t bothered even seeking injunctive relief in litigation. Why?