LawFont.com

Patently-O has an interesting post on eBay’s cert petition in its litigation against MercExchange.

The case raises an interesting issue of just how far traditional principles of equity are modified by statute. Leaving aside the question of the availability of interlocutory relief while the litigation is still pending, the key as regards permanent injunctions looks to be 35 USC 283.

It would be a very hard case to argue that an injunction would issue automatically on traditional principles for infringement of any right; courts of equity just did not work that way. And § 283 looks to be facilitative, empowering courts to grant injunctions “in accordance with the principles of equity to prevent the violation of any right secured by patent, on such terms as the court deems reasonable”, which would not seem to alter that position: i.e scrutinise each case on its merits.

That said, it would be relatively easy in many, if not most, patent infringement cases to make out the traditional grounds for grant of a permanent injunction. (Douglas Laycock has some interesting material on this point.) But there is always the chance that an unusual case will not, and this may be that case. Then again, the quality of American jurisprudence on equity has regrettably slipped in the last 30 or so years — see eg the Supreme Court’s decision in Great West v. Knudson — so anything is possible.