Important Question of Availability of Injunctions in Patent Cases will be heard by the US Supreme Court

The United States Supreme Court has agreed to hear an appeal by eBay Inc (eBay et al v MercExchange LLC, No 05-130) and will consider the issue of the availability of permanent injunctions in patent infringement cases. The general rule in the US Court of Appeals for the Federal Circuit has been that a permanent injunction will issue once infringement and validity have been adjudged. In only a few rare instances, the Court has recognized an exception to this general rule in order to protect the public interest. In contrast to the position in the United States, in Canada, although injunctions are routinely granted to patentees, they have been refused in special circumstances, which have included the failure on the part of the patentee to make use of the patented invention. The rationale behind the US position is that the right to exclude unauthorized users recognized in a patent is the essence of the concept of property, despite the Patent Act's permissive language and reference to "principles of equity" to be applied in motions for injunctions arising from patent infringement. However, the principles underlying "automatic" injunctions were developed in the context of patentees who actively practiced their patents. As a result of the increasing litigation involving so-called "patent trolls" or "submarine patents", perhaps US courts will adopt a more flexible position. Much the same general question remains at issue in the now notorious litigation between RIM and NTP, in which Judge Spencer of the United States District Court for the Eastern District of Virginia has scheduled a hearing on injunction relief and damages for February 24, 2006. Judge Spencer may be asked to factor into his analysis the pending eBay appeal. How it will affect his decision remains to be seen. For a copy of eBay's Brief, see: http://patentlaw.typepad.com/patent/eBay_Cert.pdf For a copy of MercExchange LLC's Brief, see: http://patentlaw.typepad.com/patent/Supreme_20Court_20Opposition.pdf For a copy of an article on the US Supreme Court's decision to hear the issue of the availability of injunctions, see: http://news.com.com/2100-1028_3-5973511.html For current reports on the longstanding RIM/NTP litigation, visit these sites: Paste this title into your search engine: "RIM's and eBay's misadventures in the wacky world of patent law" for a December 14, 2005 article from The Globe and Mail, and also see: http://makeashorterlink.com/?J4D82409C Summary by: Katharine McGinnis