Supreme Court Asked to Raise Standard for Obtaining Injunctive Relief

eBay v. MercExchange (on petition for certiorari)

After finding MercExchange’s patent infringed and not invalid, the district court declined to issue an injunction against eBay.  In its decision, the district court found that MercExchange’s (i) willingness to license; (ii) failure to practice the patents itself; and (iii) comments to the media regarding its intent to enforce patent rights all weighed against any presumption that it would suffer irreparable harm without an injunction. 275 F.Supp. 2d 695 (E.D. Va. 2003).

On appeal, the Court of Appeals for the Federal Circuit reversed, finding that, absent exceptional circumstances, a district court should issue a permanent injunction after a finding of infringement.

Now, eBay has appealed to the Supreme Court by filing a petition for certiorari asking the court to hear its case. The petition briefly spells out the traditional four-factor injunctive relief test and argues that the four-factor test should apply to patent cases rather than the de facto per se test applied by the CAFC. 

In the four-factor test, the court should consider (i) irreparable harm from not issuing an injunction; (ii) whether an adequate remedy exists in law (damages) (iii) whether the injunction would be in the public interest; and (iv) whether a balance of hardships would tip in the plaintiff’s favor. 

eBay argues that the move away from injunction as a per se consequence of infringement does not raise the standard for obtaining injunctive relief — rather, it is a move back to the standard originally intended by Congress.

Interestingly, this question arises at the Supreme Court as a proposed statute that would modify the principles of patent injunctive relief is being considered in Congress.