Permanent Injunctions And Running Royalties In A Post eBay World

Intellectual Property Today
September 1, 2009.

I. Introduction¹

The Supreme Court's 2006 eBay v. MercExchange² decision continues to transform the way companies and their counsel evaluate and litigate patent infringement. The two central post-eBay questions are the availability of a permanent injunction and, in the absence of an injunction, the assessment of a running royalty. As courts have tackled these new issues, some guideposts for litigation strategy and expectations have begun to surface.

II. The eBay Equities

The basic principles of eBay and its progeny are now well known. Notwithstanding a patentee's statutory right to exclude, permanent injunctions for patent infringement are a question of equity. As permanent injunctions are not automatic, a successful plaintiff must prove that (1) it will suffer an irreparable injury; (2) remedies available at law are inadequate to compensate for that injury; (3) the balance of hardships between the parties