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A Different Opinion on the Ebay Patent Decision

May 19, 2006 , ,

Yesterday, I said that “[t]his week's Supreme Court decision in Ebay v. Mercexchange, which held that a court must look to four equitable factors in determining whether an injunction should issue in a patent case, is unlikely to change” the ability of a patent infringer to avoid an injunction. That the Ebay case was nothing more than a “punt” by the Supreme Court was also the opinion of at least two of the three patent law professors who joined me on a Federalist Society panel yesterday. But a friend of PK who is a patent expert begged to differ:

“Actually, I think the Supreme Court here accomplished what Congress has been unable to do: It restored to district courts the discretion to deny injunctions for equitable reasons, and reminded the Federal Circuit that it should review district court decisions for an abuse of discretion (thereby obliterating the Federal Circuit's “extraordinary circumstances” rule). It did not categorically disapprove of any of the factors relied on by the eBay district court in denying the injunction (and four justices expressly approved some of them), which suggests that on remand, there will be no injunction.”

N.B.: The “extraordinary circumstances” rule stated that requests for injunctions should be denied only in an “'unusual' case, under 'exceptional circumstances' and ' 'in rare instances . . . to protect the public interest.' '