Denial of Injunctive Relief on Grounds of Equity: Situation in the US and Japan

In common law nations such as the United States, injunctions are categorised as remedies in equity and theoretically it is supposed to be an exceptional remedy that courts may grant in their discretion in cases where common law remedies like damages fail to provide effective protection. However, the courts in the United States had almost automatically granted injunctions until the 2006 Supreme Court decision in eBay, which has dramatically changed the landscape. While the ratio of denial of injunctive relief has drastically increased after the eBay case, Federal Trade Commission in 2011 provides useful framework in discussing whether to grant injunction: ex ante transaction versus ex post transaction. Based on this analytical tool, FTC proposes insightful recommendations to modify some court practices. On the other hand, in Japan, the patentee has the "right" to seek injunction and the Japanese courts rarely deny the injunction. However, since the exclusivity of patents is merely a means to achieve the prosperity of industry, the goal of patent law, a patent "right" just after the examination and registration by the Patent Office could be conceived as a provisional one because it can be viewed as a mere transit point within the broader process in which the requirements for excluding others from using the invention are reviewed step by step.