The Federal Circuit's recent decision in Robert Bosch LLC v. Pylon Manufacturing Corp. 659 F.3d 1142, 1149 (Fed. Cir. 2011) has been widely recognized for its explicit "jettison[ing]" of the presumption of irreparable harm previously applied in patent infringement cases where the prevailing patentee sought a permanent injunction. This ruling ended a debate that erupted after the U.S. Supreme Court in eBay Inc. v. MercExchange, LLC 547 U.S. 388 (2006) struck down the Federal Circuit's "general rule" in patent cases that a permanent injunction should necessarily follow a finding of infringement. Although the express elimination of the presumption of irreparable harm ended any lingering doubts, many district courts had already concluded that the presumption was likely dead.
Behind the fanfare of the Federal Circuit's confirmation that eBay eliminated the presumption of irreparable harm lies the body of the Federal Circuit's opinion, which, in both its tenor and conclusions, signals to defendants that avoiding permanent injunctions in the future may be more difficult than in the past since district courts began applying the tenets of eBay. Specifically, the court warned that, "[a]lthough eBay abolishes our general rule that an injunction normally will issue when a patent is found to have been valid and infringed, it does not swing the pendulum in the opposite direction." 659 F.3d at 1149. Just how far the pendulum may swing back toward the Federal Circuit's "general rule" is the subject of this analysis.