To Enjoin or Not to Enjoin: What's Come of the Test Since eBay?

Actionable guidance for what patent holders must show after eBay to prove the irreparable harm needed for a patent infringement injunction.

It has been six years since the Supreme Court's opinion in eBay Inc. v. MercExchange, LLC¹ altered the analysis for awarding injunctions in patent litigation. Before eBay, patent holders who succeeded in proving liability enjoyed presumptive entitlement to injunctive relief, and that presumption had translated into many district courts categorically issuing injunctions. In fact, before reversal by the Supreme Court, the Federal Circuit articulated this "general rule" in its own eBay opinion. There, the Federal Circuit explained that "permanent injunction[s] will issue once infringement and validity have been adjudged," and a permanent injunction should be denied only in "exceptional circumstances." ²

1. 547 U.S. 388 (2006).
2. MercExchange, LLC v. eBay Inc., 401 F.3d 1323, 1338-39 (Fed. Cir. 2005).

"To Enjoin or Not to Enjoin: What’s Come of the Test since eBay?” by Bryan J. Vogel and Shane St. Hall, Landslide^® magazine, Volume 6, Issue 1, September/October 2013. Copyright © 2013 American Bar Association. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.