IP: Injunctions and irreparable harm after eBay

District courts interpret Supreme Court ruling that patent infringement does not equal irreparable harm

It has been about six years since the Supreme Court changed the rules for obtaining an injunction in patent cases in eBay, Inc. v. MercExchange, LLC. Patent holders who succeeded in proving liability lost the presumptive entitlement to injunctive relief they previously enjoyed. Instead, the eBay court ruled that, going forward, patent infringement injunctions had to satisfy the four-part test used to assess other requests for an injunction.

Since eBay, district courts have had difficulty deciding when a successful patent holder should also be entitled to an injunction. In particular, eBay’s holding that proof of patent infringement and validity does not equal proof of irreparable harm has left some courts unsure what evidence satisfies that requirement in patent cases. But, despite some inconsistent outcomes, trends have begun to emerge that give patent holders and accused infringers guidance on how courts decide whether a patent holder has satisfied its burden of showing irreparable harm when seeking an injunction.

Proving irreparable harm

Various factual patterns have begun to emerge as proof of irreparable harm in favor of injunctive relief. Specific evidence regarding market impact, amount of competition, practice of the invention and the invention’s business importance to the patent holder have all proved important in proving irreparable harm.

But non-practicing entities like university researchers or self-made investors can still show irreparable harm when they can demonstrate that it is reasonable to prefer to license their patent(s) rather than undertake efforts to secure the financing necessary to bring their works to market themselves.

4. Invention’s business importance

Contributing Author

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Bryan J. Vogel

Bryan J. Vogel is a trial lawyer and partner with the firm Robins, Kaplan, Miller & Ciresi L.L.P. He is a registered patent attorney with...

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Contributing Author

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Shane St. Hill

Shane St. Hill is an attorney in the New York offices of Robins, Kaplan, Miller & Ciresi, practicing in intellectual property and trademark infringement litigation.

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