Intellectual Property Law

We told you last December that the Supreme Court granted cert in the matter of eBay v. MercExchange, where it is expected to address the question of when an injunction should issue against a patent infringer.  Oral argument is set for March 29, and the respondents? briefs were due last Friday, March 10.  Recall that eBay has challenged whether a district court must, absent exceptional circumstances, issue a permanent injunction after a finding of infringement, and the Supreme Court also directed the parties to brief the question of  "Whether this Court should reconsider its precedents, including Continental Paper Bag Co. v. Eastern Paper Bag Co., 210 U.S. 405 (1908), on when it is appropriate to grant an injunction against a patent infringer."

While eBay was found to infringe MercExchange?s patents, the district court did not issue an injunction.  On appeal, the Federal Circuit applied its ?usual rule? of issuing an injunction against an infringer absent special circumstances.  According to eBay, that was tantamount to an automatic injunction, and precluded the use of discretion by the district court.  In potentially bad news for eBay, the Solicitor General?s brief (on behalf of both the Federal Trade Commission and the Justice Department?s antitrust division) came out against eBay, urging issuance of an injunction.  The Supreme Court won?t be left without guidance from interested parties, as many stakeholders have weighed in on this critical issue.  For a concise summary of the nearly 30 amicus briefs that have been submitted, check out Dennis Crouch?s Review: EBay v. MercExchange Amici Briefs, Patently-O, March 13, 2006, available at http://www.patentlyo.com.

Two weeks until oral argument on one of the biggest patent cases of the year.  Does the government have it right on this one?