eBay v. MercExchange -- on Remand

eBay v. MercExchange (on remand to the CAFC).

In May, 2006, the U.S. Supreme Court decided the eBay case, holding simply that traditional equitable principles must be applied when determining whether to issue a permanent injunction against am adjudged infringer. That decision vacated both the district court’s decision (as over-broad) and the CAFC’s decision (as too narrow). 

On July 6, 2006, the Federal Circuit issued an order (without opinion) sending the case all the way back down to the district court to determine whether, in light of the Supreme Court’s holding, MercExchange’s harm is sufficient to garner injunctive relief.

Comments

[Michael Slonecker]

Oh, but to have researchers immediately at hand. I would love to see how permanent injunctions are treated in cases involving:

1. Copyright infringement
2. Trade secret misappropriation
3. Trespass on real property
4. Etc.

My instincts tell me they are routinely issued to preserve exclusive rights of the property owners. Why patents should be treated any differently as the "Group of 4" suggests eludes me.

[jr]

good luck to them

[TJ]

I don't disagree with Michael that patent rights are very similar to copyright rights, and the injunction rule should also be very similar. In fact, that is what Ebay expressly says:

"Like the Patent Act, the Copyright Act provides that courts 'may' grant injunctive relief 'on such terms as it may deem reasonable to prevent or restrain infringement of a copyright.' 17 U.S.C. § 502(a). And as in our decision today, this Court has consistently rejected invitations to replace traditional equitable considerations with a rule that an injunction automatically follows a determination that a copyright has been infringed."

The question that should have been, but never was, resolved in Ebay is whether patent rights are like traditional real property. Trespass to real property was and is deemed irreperable as a matter of law, subject only to strong public policy factors such as escape from immediate danger. The "equitable discretion" point does nothing to the analysis: the four-factor test is applied to real property too, it is just that irreperable harm always resulted in favoring an injunction after properly applying the four factors.

Now, there are many ways that patent rights and copyright rights are different from real property rights, practically if not legally. Most obviously, the intrusiveness of trespass to real property is potentially much greater and qualitatively different, the nightmare being an unwelcome camper in one's own home. A trespasser to one's patent rights, no matter how willful, is in the end only a fight about money. Whether this difference could carry the day is a question that remains to be seen.