Permanent Injunctions in Patent Litigation after eBay: An Empirical Study
2016; University of Iowa College of Law; Volume: 101; Issue: 5 Linguagem: Inglês
ISSN
0021-0552
Autores Tópico(s)Corporate Governance and Law
ResumoI. IntroductionThe Supreme Court's 2006 opinion in eBay v. MercExchange, which held that prevailing patentees in litigation are not automatically entitled to a permanent injunction,1 is widely regarded as one of most significant law decisions of past decade.2 It has been extensively cited by lower federal courts,3 and is subject of numerous law review articles.4 The case has also spawned a significant transformation in field of remedies, reshaping test for permanent injunctive relief in numerous areas outside of law.5Despite its perceived importance, however, there has been little rigorous empirical examination of eBay's actual impact in litigation.6 This is significant because eBay decision-which was unanimous-contains two concurring opinions that express seemingly divergent perspectives regarding availability of permanent injunctions in future cases.7 In particular, it remains hotly contested whether so-called assertion entities (PAEs)8-firms who principally exploit their patents through litigation and/or licensing rather than directly practicing them and who are sometimes pejoratively referred to as patent trolls9-should be able to obtain injunctive relief.10This Article helps fill this significant gap in literature by reporting results of an original empirical study of contested permanent injunction decisions in federal district courts for a 7.5 year period following eBay, representing most in-depth effort to date to assess post-eBay landscape. The data in this study reveal that, while vast majority of patentees still obtain injunctive relief following eBay, PAEs rarely do.11 This finding remains robust even after controlling for field of technology of infringed patents and district court that decided case.12 Furthermore, PAEs often cannot establish type of injury deemed irreparable following eBay, which is a prerequisite to obtaining a permanent injunction.13 In sum, district courts appear to have adopted a de facto rule against injunctive relief for PAEs and other owners who do not directly compete in a product market against an infringer-a rule which, ironically, is in tension with Supreme Court's conclusion in eBay that the District Court erred in its categorical denial of injunctive relief' to a non-practicing patentee.14This Article also evaluates impact of other considerations on permanent injunction decisions after eBay. It finds that grant rates vary significantly by field of technology, with injunctions nearly always granted in cases involving patented drugs and biotechnology, but much less often for disputes involving computer software.15 The study also finds that grant rates differ by district, even after controlling for propensity of PAE litigants to file lawsuits in particular courts.16 Furthermore, it assesses whether several other factors mentioned in concurring opinions in eBay and district court's decision after remand-such as patentee's willingness to license patented technology, whether patented technology covers only a small component of an infringing product, and a finding that defendant willfully infringed patent-are correlated with injunction decisions.17Finally, this Article reports results of a second, related dataset that explores whether traditionally accepted indicators of value are correlated with injunction decisions.18 Somewhat surprisingly, it finds that these indicators are not predictive of whether a patentee is likely to receive an injunction.19The balance of this Article is organized as follows. Part II provides an overview of theoretical distinction between property rules and liability rules for enforcing legal rights, focusing on their application to intellectual property (IP) rights. Part III traces historical development of right to exclude in law. It then analyzes eBay litigation and concludes with an overview of existing literature on eBay's impact in litigation. …
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