By Robert H. Resis of Banner & Witcoff, Ltd.Introduction
The Supreme Court decision in eBay v. MercExchange 2 dramatically reduces the likelihood
that a non-practicing patentee can obtain a permanent injunction after winning a patent infringement
trial. A number of articles have been written regarding the adverse impact of this landmark
decision on the non-practicing patentee. 3 The adverse impact of this decision on so-called patent trolls, who
use their patents solely as a means for obtaining licensing fees, is particularly acute. 4 At least one article has
commented on the drop in stock price of Acacia, a publicly-traded patent holding company, after the
eBay decision. 5
This article reviews the flip-side to the eBay decision – i.e., the
benefits to market leaders since the eBay decision. The four factors required in
eBay for a permanent injunction, i.e., (1) irreparable injury, (2) inadequacy of legal
remedies (monetary damages), (3) balancing of hardship in favor of the patent owner, and (4) no
disservice to the public interest will almost always favor the market leader over those less dominant in
the mar...
