eBay Turns Three: Injunctive Relief Hard to Come by for Non-Practicing Entities

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This May marks the three-year anniversary of the United States Supreme Court deciding eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006). That decision overturned the Federal Circuit’s “general rule that courts will issue permanent injunctions against patent infringement absent exceptional circumstances.” Id. at 391. In its place, the Supreme Court directed courts considering whether to award injunctive relief to apply the traditional four-factor test, requiring a plaintiff to demonstrate: “(1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.” Id. Though the Court noted that neither “a plaintiff’s willingness to license its patents” nor “its lack of commercial activity in practicing the patents” was a per se bar to injunctive relief, id. at 393, commentators nevertheless opined that, post-eBay, non-practicing entities would find it harder to obtain permanent injunctive relief.

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