Individuals and businesses can structure their relationships in only one of two ways: by consent or through coercion. The former allows for mutual gains between the parties. The latter allows one person to benefit from the labour of another. Yet to make consent work, two conditions must be satisfied. First, the terms of the agreement have to be faithfully enforced, for otherwise no one will invest today in the hopes of reaping a return tomorrow. The second is that no individual or firm should be allowed to bypass the market, by using the property of another without his or her consent. Traditionally, this requirement has allowed patent holders to routinely obtain injunctive relief, thereby avoiding the the twin risks of systematic undercompensation and high administrative costs. The public interest forced potential infringers into voluntary arrangements.

That primacy of injunctive relief is now up for debate. No one, of course, thinks that patented technologies should be used freely by nonowners without compensation. But many agree with the Supreme Court of the United States in Ebay v. MercExchange, in thinking that the recognition of strong patents leads to a fragmentation of property rights that will in the end retard the innovation that patents are intended to foster.