eBay v. MercExchange The Strong Get Stronger
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Life after eBay v. MercExchange The Strong Get Stronger1

By Robert H. Resis of Banner & Witcoff, Ltd.


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...

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