Three years ago, the Supreme Court ruled, in eBay v. MercExchange LLC, that a prevailing plaintiff, in a patent infringement suit, is not automatically entitled to an award of a permanent injunction against the infringer (scum sucker). Rather, the trial court was to apply the traditional four-factor test.
As usual when the Supreme Court renders a decision in a patent case, a portion of the IP community screams that the world – more particularly, THEIR portion of the world – is ending. So, how much of a change has this case caused? The answer, according to a survey of decisions in trials subsequent to eBay is: NOT MUCH, at least if you’re not a “non-practicing entity” (N.P.E., also known, pejoratively, as a “troll”).
The survey identified 67 patent cases wherein a final decision as to a permanent injunction was entered. The court awarded an injunction in 48 of these cases (for the mathematically challenged, that’s about 72%). In those instances where the court denied an injunction, two-thirds of the disappointed plaintiffs (12 out of 19) were competitors of the defendants. In denying an injunction to a competitor of the defendant, the courts overwhelmingly held that there was no irreparable harm, an adequate remedy was available at law, and the public interest favored denial.
Thus, if you are practicing the patented invention and especially if you compete with the infringer, eBay didn’t effect much of a change. If you’re an N.P.E., the news is not so good. Unless you are a research organization which is funded by royalties, or you are an “indirect competitor” of the defendant, you “ain’t gonna get” an injunction.