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The Three Year Anniversary of eBay v. MercExchange: A Statistical Analysis of Permanent Injunctions

By Ernest Grumbles, III and Rachel C. Hughey and Susan Perera

I. Introduction

In May 2006, the Supreme Court dramatically changed the landscape of permanent injunctions in patent cases in eBay Inc. v. MercExchange L.L.C.1 For decades prior to the eBay decision, the Federal Circuit had instructed that after a determination of patent infringement there was a general rule a patentee was entitled to a permanent injunction. The Supreme Court rejected such a rule. After the Supreme Court's eBay decision, patent holders can no longer rely on a presumptive entitlement to permanent injunctive relief after proving infringement. Instead, the patentee must now meet the traditional four-factor test to obtain a permanent injunction.

Three years have passed since the Supreme Court's decision, and it is an appropriate time to review district court decisions to understand how the district courts have been handling permanent injunctions. It is also valuable to review relevant Federal Circuit decisions to understand how the court reviews those decisions—especially when the district court decides not to grant a permanent injunction. Unsurprisingly, since the eBay decision, district courts have been willing to deny permanent injunctions after a finding of patent infringement—something that was virtually unheard of prior to eBay. And the Federal Ci...

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