In the patent world, the Court's 2006 eBay decision is widely regarded as a pivotal moment, particularly as it relates to the likelihood of a prevailing party receiving a permanent injunction against an infringer. In eBay, the Court, rejecting the prevailing “general rule” that a prevailing patentee is entitled to an injunction, articulated a four-part test that lower courts must apply before granting such relief. Despite this critical legal change, eBay's effects have remained comparatively understudied.
In Permanent Injunctions in Patent Litigation After eBay: An Empirical Study, Christopher Seaman (Wash & Lee) presents results from a study of more than seven years of contested permanent injunction decisions in district courts after eBay. An excerpted abstract, summarizing the key findings, follows.
"... eBay has effectively created a bifurcated regime for patent remedies, where operating companies who compete against an infringer still obtain permanent injunctions in the vast majority of cases that are successfully litigated to judgment. In contrast, non-practicing entities almost always are denied injunctive relief. These findings are robust even after controlling for the field of patented technology and the particular court that decided the injunction request. It also finds that permanent injunction rates vary significantly based on patented technology and forum."