Ninth Circuit Issues Decision on Trade Secret Injunctive Relief

Intellectual property practitioners are no doubt familiar with the Supreme Court's watershed decision in eBay v. MercExchange, 547 U.S. 388 (2006). That decision overturned a line of Federal Circuit authority holding that permanent injunctions should issue as a matter of course in the presence of patent infringement. While acknowledging that patents grant the right to exclude others from practicing the patented invention, the Supreme Court held that a patentee nonetheless must satisfy the traditional four-factor equitable test for injunctive relief, including a showing of irreparable harm. Similarly, in Winter v. Natural Resource Defense Council, 555 U.S. 7 (2008), the Supreme Court instructed that plaintiffs seeking preliminary injunctive relief must establish a likelihood of irreparable injury.

The Ninth Circuit has extended the reasoning of eBay and Winter into other fields of intellectual property. For example, it has rejected the presumption of irreparable harm for copyright infringement and trademark infringement (although the Trademark Modernization Act has now reintroduced a statutory rebuttable presumption of harm). But the Ninth Circuit has been largely silent on this presumption for trade secrets misappropriation. The exception was an unpublished decision issued shortly after eBay, upholding a denial of preliminary injunction in a trade secret case where the lower court did not apply a presumption of harm.