Is It Time to Rethink eBay?

Joseph A. Saltiel

©2017. Published in Landslide, Vol. 9, No. 3, January/February 2017, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.

May 2016 marked the tenth anniversary of the Supreme Court’s decision in eBay Inc. v. MercExchange, LLC,1 where the Supreme Court reversed the long-standing rule that patentees were entitled to a permanent injunction as a matter of right. Now, a patentee must demonstrate that it meets the traditional four-part test applied by courts of equity to get a permanent injunction. Hence, after eBay, it became more difficult for patentees to get a permanent injunction, and if the patentee is a nonpracticing entity, it is unlikely to get one.

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