By now, every “non-practicing entity” (NPE) in the country must be aware of the impact of the Supreme Court’s eBay decision, compelling the courts to apply the dreaded “four-factor” test to determine whether a prevailing patentee is entitled to an injunction barring further infringement by the scum-sucking defendant. In case anyone has been comatose for the past year and is unaware of the implications of this decision, I will briefly summarize – if you’re an NPE, the courts will NOT grant you an injunction.

The famous – or infamous, if you’re an N.P.E. – eBay decision has eliminated the automatic injunction formerly awarded to prevailing patentees. Now, the courts are to apply the “4 part test” traditionally applicable to the award of equitable relief. As a practical matter, the trial court must now decide whether the prevailing patentee will suffer any “irreparable harm” if the scum sucking infringer continues to infringe. All well and good – if you’re not an N.P.E. – but which party bears the burden of proving the “irreparable harm”?