Once upon a time, a patentee that prevailed in an infringement suit was awarded a permanent injunction barring the scum-sucking, bottom-feeding defendant from committing further dastardly acts of infringement. Automatic; no questions asked. Then, the Supreme Court, in its infinite wisdom, handed down its eBay decision, under which a patentee which does not practice the patented invention – an N.P.E. or, depending upon your point of view, a Patent Troll – is simply not going to receive an injunction.

Just as the affronted gunfighter of yore offered his foe the choice to “get out of town” (said with a snarl) or “meet me in the street at high noon,” so the modern, white-hatted patent owner often seeks to offer a choice to a black-hatted, scum sucking infringer, contacting the swine and offering a license before initiating suit for patent infringement. Since the Medimmune decision, it has required great care to achieve this without conferring upon the infringer standing to bring a declaratory judgment action. It was difficult, but it could be done.

Large businesses, especially those found guilty of patent infringement, malign N.P.E.s – which they call “trolls,” by claiming that the N.P.E.s are asserting invalid or trivial patents and are, thereby, perverting the patent system. Well, we now have a scholarly study, conducted by independent researchers, which refutes this rant. (Patent Trolls on Markets for Technology – An Empirical Analysis of Trolls’ Patent Acquisitions by Timo Fischer and Joachim Henkel of the Technical University of Munich.)

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”?

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.

Large corporations are constantly railing against the alleged unethical conduct of NPEs (Non-practicing Entities, also pejoratively known as “trolls” and “those X!#?Z”) which have the temerity to sue when their patents are being infringed.