Washington and Lee law professor Christopher Seaman presented a current work-in-progress, Property vs. Liability Rules in Patent Litigation Post-eBay: An Empirical Study, at the Fifth Annual Patent Conference (PatCon5) at the University of Kansas School of Law on April 11-12, 2015. The Patent Conference is the largest annual conference for patent scholars in the world.
From the Abstract:
In this paper, I empirically assess the impact of the Supreme Court’s decision in eBay, Inc. v. MercExchange, LLC, 547 U.S. 388 (2006), on grants of permanent injunctions or, in the alternative, ongoing royalty awards, in patent litigation.
Prior to eBay, the Federal Circuit established a “general rule” granting injunctive relief after entry of a final judgment that the asserted patent was valid and infringed. Id. at 391. Overcoming this presumption required a significant showing of public harm that outweighed the patentee’s irreparable harm. In practice, however, this rarely occurred, and district courts routinely granted injunctions after a finding of infringement.
In eBay, the Supreme Court unanimously rejected the Federal Circuit’s “general rule” in favor of injunctive relief, instead holding that trial courts must apply “traditional equitable principles” in the form of a four-factor test. Id. at 391-94. However, in concurring opinions, Chief Justice Roberts and Justice Kennedy offered seemingly divergent assessments regarding eBay’s likely impact in patent litigation. Chief Justice Roberts suggested that trial courts would continue to grant injunctive relief after a finding of infringement in “the vast majority of patent cases,” id. at 395, whereas Justice Kennedy asserted that injunctive relief may be inappropriate in situations that differed from traditional patent litigation, such as suits by non-practicing entities (NPEs) and cases involving business method patents. Id. at 396.
To test these predictions, as well as several other hypotheses about injunctive relief post-eBay, I am empirically studying all district court decisions where the patentee requested a permanent injunction following a finding of infringement (excluding uncontested injunctions) from the date of the eBay decision through the end of 2013. Each case is being coded for a number of variables that may have affected district courts’ decisions regarding whether to grant or deny injunctive relief, including the technological field of the asserted patent(s), whether the parties are competitors in a product market, and whether the accused infringer was found to have willfully infringed the patent. A summary of the results and data analysis from this empirical study will be presented at the conference.