Inadequate Remedies at Law
A patentee must establish that remedies at law are not enough to compensate for the infringement.
The second eBay factor is whether remedies available at law, such as monetary damages, are inadequate to compensate for the irreparable harm suffered by the patentee.
— Apple Inc. v. Samsung Electronics Co., Ltd., 809 F. 3d 633, 644–645 (Fed. Cir. 2015).
A variety of factors may weigh on the issue that remedies at law are inadequate.
in favor, an infringer’s inability to pay damages;
[U]nlike an infringer's inability to pay a judgment, which may demonstrate the inadequacy of damages, see Bosch, 659 F.3d at 1155-56, a defendant's ability to pay a judgment does not defeat a claim that an award of damages would be an inadequate remedy.
— Apple Inc. v. Samsung Electronics Co., Ltd., 735 F. 3d 1352, 1369 (Fed. Cir. 2013).
in favor, a patentee’s lost market share;
In this case, a small company was practicing its patent, only to suffer a loss of market share, brand recognition, and customer goodwill as the result of the defendant's infringing acts. Such losses may frequently defy attempts at valuation, particularly when the infringing acts significantly change the relevant market, as occurred here.
— i4i Ltd. Partnership v. Microsoft Corp., 598 F. 3d 831, 862 (Fed. Cir. 2010).
in favor, difficulty in estimating monetary damages;
[...T]his difficulty in estimating monetary damages reinforces the inadequacy of a remedy at law.
— Broadcom Corp. v. Qualcomm Inc., 543 F. 3d 683, 703 (Fed. Cir. 2008).
against, a patentee’s willingness to license in the past.
[W]e find no error in the district court's decision to consider evidence of Apple's past licensing behavior.
— Apple Inc. v. Samsung Electronics Co., Ltd., 735 F. 3d 1352, 1370 (Fed. Cir. 2013).