Document Type

Article

Publication Date

2018

Abstract

This article examines the state of patent remedies following the Supreme Court's decision in eBay Inc. v. MercExchange, L.L.C. (2006), which altered the standard for granting injunctions in patent infringement cases. The author argues that over a decade of inconsistent application and discussion regarding the eBay precedent has led to confusion in patent remedies. The article provides:A historical overview of the eBay case and the procedural factors contributing to the current state of uncertainty. An empirical analysis highlighting differences in injunction decisions between district courts and the Federal Circuit, noting the latter's continued inclination toward granting injunctions.A discussion on the significance of the Supreme Court's 1908 decision in Continental Paper Bag Co. v. Eastern Paper Bag Co., reaffirmed in eBay, which supports injunctions for non-practicing patent owners—a principle often overlooked in contemporary patent law. A review of scholarly debates on whether patent rights should be protected primarily through property rules (injunctions) or liability rules (monetary damages). An examination of proposed legislative changes aimed at addressing the ambiguities introduced by the eBay decision. The article concludes by emphasizing the need for clearer guidelines in patent remedies and suggests that the Supreme Court is best positioned to resolve these ambiguities.

Publication Title

George Mason Law Review

Volume

26

First Page

128

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