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.

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