Liam O'Melinn


If it were not already an apt time to consider the effects of the Supreme Court's eBay v. MercExchange decision, several recent developments serve as reminders of the importance of the issues addressed in the case: In Capitol v. Thomas the recording industry has succeeded in securing a $222,000 judgment in statutory damages for copyright infringement, a software patent infringement suit was filed in October 2007 by IP Innovation and Licensing against Novell and Redhat-seemingly the first suit to target Linux-and the PTO has rejected most of the claims in Amazon's 1-Click patent.

The eBay decision appears to assert that the law of patent is not immune to general jurisprudential principles, and it may also be the first statement of a broad principle that peculiar tendencies exhibited by both patent and copyright law must either be justified or jettisoned. Thus, eBay leads to three different issues: the appropriate grounds for issuing injunctive relief, the justifications that underlie the remedial scheme, and the much broader issue of the role of the public interest in the law of patent and copyright. The decision offers an invitation which, if accepted, should lead to a reexamination of the extension of intellectual property law in a time of revolutionary change. If this seems too much to claim on behalf of a modest decision that emphasizes that it is maintaining tradition rather than departing from it, the implications of the case are potentially enormous for two reasons: in instructing lower courts to exercise genuine discretion in deciding whether to issue injunctions the case may also tacitly invite judges to reevaluate the bounds of the law in a more thorough way. Second, the case may refocus attention on the public interest at a time when an important segment of the public is poised to take part in a reconsideration of the premises of patent and copyright.