US "Compulsory Licenses"

In this article L. Scott Burwell and Amanda Lutz explain why the denial of injunctive relief by US courts is not akin to the issuance of compulsory licenses (CL).  The authors note that while, post-eBay, injunctive relief against infringers is no longer a virtual certainty, the courts continue to regularly award injunctive relief to patentees practicing their invention against direct, active competitors.  The authors enumerate the distinctions between courts' denial of injunctive relief under certain circumstances, on the one hand, and government decisions to intervene to alter market dynamics by issuing CL, on the other hand.  They also review forms of government use other than CL that are available in the US, noting that some have never been used and all are constrained to use in narrow circumstances.  The authors examine the courts' assessments of the public interest, including the perceived public interest in IP protection. 

June 2017