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Patent Injunctions: Quo Vadis ' What Is the Expectation of a Patentee After eBay?

By Steven Pokotilow and Richard Eskew
August 01, 2006

Whither goest thou?' Or, in plain English: Where are you going? That is the question that must be asked of the courts in the wake of the Supreme Court's recent decision in eBay, Inc., v. MercExchange, LLC, 126 S. Ct 1837 (2006), in which the Court reversed the long-standing practice in the Court of Appeals for the Federal Circuit (the 'Federal Circuit') of granting permanent injunctions in patent cases absent a persuasive reason for not doing so.

Several questions arise: First, has the Supreme Court crafted a rule that will bring chaos and confusion at the trial court level? Or has the Court shrewdly created an environment where free markets, along with trial judges at the ground level, will achieve greater economic efficiency in dealing with patent disputes? Second, how does one attempt to predict what might happen in any given case? How does the ruling affect post-trial damages and the entry of preliminary injunctions?

These are tough questions that must be asked both by patentees and by corporate counsel representing patentees or the accused. In some respects, the Supreme Court's decision reaffirmed the tried and tested tenets of the law of patent injunctions. However, in other respects, the justices could not agree on how those maxims should be applied. Thus, as we will see, the Court's decision in eBay and, by extension, the opinions of the concurring justices, have the potential to radically alter the landscape of interactions between patentees and those accused of infringement. For this reason, we ask Quo Vadis?

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