Washington and Lee law professor Christopher Seaman presented a new research project, entitled Property Rules vs. Liability Rules in Patent Litigation After eBay: An Empirical Study, at the 2015 Works in Progress in Intellectual Property Colloquium on February 6-7 at the U.S. Patent and Trademark Office in Alexandria, VA. The conference was jointly hosted by The George Washington University Law School and the United States Patent and Trademark Office.
Professor Seaman’s presentation at the conference was also featured on the blog Written Description.
From the abstract:
This project empirically assess the impact of the Supreme Court’s decision in eBay, Inc. v. MercExchange, LLC, 547 U.S. 388 (2006), on grants of permanent injunctions in patent litigation. Prior to eBay, the Federal Circuit established a “general rule” granting injunctive relief after entry of a final judgment that the asserted patent was both valid and infringed. In eBay, the Supreme Court unanimously rejected the Federal Circuit’s “general rule” in favor of injunctive relief, instead holding that trial courts must apply “traditional equitable principles” in the form of a four-factor test. However, in concurring opinions, Chief Justice Roberts and Justice Kennedy offered seemingly divergent assessments regarding eBay’s likely impact in patent litigation. Chief Justice Roberts suggested that trial courts would continue to grant injunctive relief after a finding of infringement in “the vast majority of patent cases,” whereas Justice Kennedy asserted that injunctive relief may be inappropriate in situations that differed from traditional patent litigation, such as suits by non-practicing entities (NPEs) and cases involving business method patents.
To test these predictions, as well as several other hypotheses about injunctive relief post-eBay, this project empirically analyzes all district court decisions where the patentee requested a permanent injunction following a finding of infringement (excluding uncontested injunctions) from the date of the Supreme Court’s eBay decision through 2013. Each case was coded for a number of variables that may have impacted district courts’ decisions regarding whether to grant injunctive relief, including the technological field of the asserted patent(s), whether the litigants are competitors in a product market, and whether the accused infringer was found to have willfully infringed the patent. The results from this study provide empirical evidence that supports conventional wisdom in some respects, such as finding that NPEs are rarely granted permanent injunctions post-eBay, but that challenges other commonly-held assumptions, such as finding that a history of licensing the asserted patent(s) does not appear to routinely preclude injunctive relief.
