The Business Litigation Blog

Preliminary vs. Permanent Injunctions

If a patentee plaintiff wins his patent infringement suit, he may not necessarily be awarded a permanent injunction against the defendant. Of course, this seems somewhat strange, since the whole point of getting a patent (and disclosing the secrets of your patented subject matter) is to receive the exclusive right to make, use, sell and offer the patented subject matter. This implies that the patentee should be able to permanently enjoin any infringing use of his valid patent.  However, this idea was explicitly rejected in the Supreme Court’s eBay decision “eBay, Inc. v. MercExchange, LLC, 547 U.S. 388 (2006).”

Prior to the Supreme Court’s holding in eBay, the Federal Circuit held that as a general rule, that courts will issue permanent injunctions against patent infringement absent exceptional circumstances. In the eBay holding, the Supreme Court overturned the Federal Circuit’s approach to permanent injunctions in patent cases and rejected the general rule. The Court held that it did not find any statutory support for the differentiation of patent law cases from other cases.

Thus, after findings of patent infringement, courts analyze permanent injunctions under the rubric of the four factor test re-articulated in eBay. The rubric specified that a plaintiff must establish all of the following: (a) irreparable injury/harm; (b) that the other remedies available (i.e., monetary damages) are inadequate to compensate the plaintiff for the harm suffered; (c) after balancing the hardships to both parties, equity favors a decision for the plaintiff; and (d) public interest would not be harmed if a permanent injunction issued.  These four factors are similar to the four preliminary injunction factors with two exceptions. 

First, the preliminary injunction analysis makes “inadequacy of other remedies” into a component of irreparable harm, whereas “inadequacy of other remedies” is its own requirement, wholly separate from irreparable harm, in the permanent injunction analysis.  The overlap between irreparable harm and (in) adequacy of other remedies makes this a technical distinction. Second, the preliminary injunction analysis requires considering the plaintiff’s reasonable likelihood of success on the merits, whereas a permanent injunction is not even being considered until the plaintiff has won.

For more information on patent or intellectual property matters, click here or call 312-223-1699 to speak with one of our Chicago law firm attorneys.

2 comments for “Preliminary vs. Permanent Injunctions”

  1. google adwords account banned posted on Thursday, January 01, 2015 at 5:59:23 AM

    Good day! Do you use Twitter? I'd like to follow you if that would be ok.
    I'm undoubtedly enjoying your blog and look forward to new posts.

  2. Lauren Conrad posted on Sunday, February 11, 2018 at 3:52:17 PM

    Hi, I do think this is a great blog. I stumbledupon it ;) I may revisit once again since I bookmarked it.
    Money and freedom is the best way to change, may you be rich and continue to
    guide others.

Post a comment

Comments closed

Real Time Web Analytics