Injunctive relief hews to the principle expressed in the Constitution of "securing... for inventors the exclusive right," and is consistent with the concept that infringement causes irreparable harm to a patent owner.

Historically, two exceptions to granting injunctive relief developed. First, with regard to the public interest: if an injunction could be deemed to threaten substantial injury to public interest, a patent owner would, in essence, be forced to grant a compulsory license by denial of injunctive relief. An example may be found in Bliss v. Brooklyn, 3 F. Cas 706 (C.C.E.D.N.Y. 1871) (No. 1544).

Second, perversely from a rights viewpoint, an injunction might be denied if the detriment to the infringer severely outweighed the benefit to the patent holder. Germane cases include McCrary v. Pennsylvania Canal Co., 5 F. 367 (C.C.E.D.Pa 1880), affirmed 141 U.S. 459 (1891), and Dorsey Harvester Revolving Rake Co. v. Marsh, 7F. Cas. 939, 945 (C.C.E.D.Pa. 1873) (No. 4014).

This second exception is the case law wedge prying open justification, as proposed in the current legislative package of patent reform, to selectively apply injunctive relief in cases where the infringer is a manufacturer employing a patented technology, but the patent owner is not actively employing the technology.

Historically, applying the above exceptions in refusing injunctive relief have been rare and exceptional. Refer to Foster v. American Mach. & Foundry Co. 492 F.2d 1317 (2d Cir.1974); Royal-McBee Corp. v. Smith-Corona Marchant, Inc., 295 F.2d 1, 6 (2d Cir.1961); Nerney v New York, N.H. & H.R. Co., 83 F.2d 409 (2d Cir.1936); Curtiss Aerocar Co. v. Springer, 81 F.2d 668 (5gh Cir.1936).

The currently proposed legislation to tilt the playing floor towards infringers regarding injunctions based upon the circumstance of the patent owner is a major leap, without historical precedence. The primary patent grant clearly expressed in the Constitution is that of a choice in exclusivity by the patent owner. Owing to the radical nature of the proposal, gutting enforcement of the primary right of patent owners, the proposal's acceptance should only be brooked by a solid justification to the benefit of patent owners in conformance with the Constitution; a justification which has abjectly absent, perhaps logically impossible, and certainly without solid legal foundation in at least the past 185 years. Otherwise, the proposal should be seen for what it appears prima facie: a power grab by corporations at the expense of inventors, and in denial of the basic Constitutional nature of the patent grant.