Nonuq – ebay vs merchexchange did not stop courts from removing medical supplies from the market

REBUTTABLE PRESUMPTION OF PUBLIC INTEREST IN PROTECTING THE PUBLIC HEALTH-THE NECESSITY FOR DENYING INJUNCTIVE RELIEF IN MEDICALLY-RELATED PATENT INFRINGEMENT CASES AFTER EBAY V. MERCEXCHANGE Lance Wyatt INTRODUCTION The public's interest in medicine and good health is substantial. However, this interest is harmed when important medical devices or pharmaceuticals, although infringing on valid patents, are suddenly taken off the market after a court grants a permanent injunction. While permanent injunctions were automatically granted by the Federal Circuit before the Supreme Court's holding in eBay v. MercExchange, courts now have more discretion to deny injunctive relief. Now that courts have this newfound discretion after eBay, the public should no longer expect to be harmed by the sudden removal of medical supplies from the marketplace. Unfortunately, this has not been the course that all courts have taken post-eBay. To protect the public interest, courts should apply a rebuttable presumption in medically-related patent cases, finding that the public interest weighs against granting an injunction. This Comment highlights the necessity for this rebuttable presumption to help protect the public health. Part I provides a brief overview of the history of injunctive relief in patent infringement cases prior to 2006 and the few exceptions applied to deny injunctions. Part II analyzes the eBay v. MercExchange case, from its beginning in the district court to its remand back to the district court after the landmark decision in the Supreme Court. Next, Part III provides an overview of general trends regarding injunctive relief in patent infringement cases post-eBay and also analyzes the courts' treatment of injunctive relief in recent cases in the medical patent space. Finally, in Part IV expresses the importance of the public interest in medicine and the public health and lays out the multiple reasons why it is necessary that the courts to apply a rebuttable presumption of public interest to deny injunctive relief in patent cases involving medically-related patents. Lastly, a set of hypothetical situations is offered to emphasize the necessity of the rebuttable presumption. Copyright © 2014 Lance Wyatt. J.D. Candidate, 2014, SMU Dedman School of Law; B.S. Biomedical Engineering, 2011, Texas A&M University. The author would like to thank his family for their unending support. No. 1] Rebuttable Presumption of Public Interest in Protecting the Public Health 299 I. INJUNCTIVE RELIEF IN PATENT INFRINGEMENT CASES PRIOR TO 2006 A. Injunctive Relief Overview The United States Constitution provides Congress with the enumerated power "to promote the progress of science and useful arts, by securing for limited times to ... inventors the exclusive right to their respective ... discoveries."1 Pursuant to this power, the Patent Act of 1952, as amended, governs patent law in the United States.2 A patent grants its holder the "right to exclude others from making, using, offering for sale, or selling the invention throughout the United States" for a certain amount of time.3 When this right to exclude is infringed upon, courts "may grant injunctions in accordance with the principles of equity to prevent the violation of any right secured by patent, on such terms as the court deems reasonable."4 Courts have traditionally established that a plaintiff seeking a permanent injunction must satisfy a four-factor test before being granted such relief.' These factors include: (1) that [the plaintiff] has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.6 However, not all courts have followed this four-factor test. B. Federal Circuit's "General Rule" The Federal Circuit Court of Appeals, established in 1982 and given exclusive patent appellate jurisdiction,' did not follow this traditional four-factor test prior to 2006.8 Instead, the Federal Circuit followed a "general rule that an injunction will issue when infringement has been adjudged, absent a sound reason for denying it."9 This "automatic injunction rule," or "general rule," arose U.S. CONST. art. I, § 8, cl. 8. 2 35 U.S.C. § 101 (2006); see Sue Ann Mota, eBay v. MercExchange: Traditional Four-Factor Test for Injunctive Relief Applies to Patent Cases.