Overruling eBay destroys that balance—removing eBay’s public interest prong means automatic injunctions wreck innovation. And, eBay’s good for patent protection—it doesn’t swing the pendulum too far.

III. NEW INDUSTRY-STANDARD: LEGAL LANDSCAPE POST-EBAY MAKES ROOM FOR ENVIRONMENTAL CONCERNS

eBay marked the demise of courts’ nearly automatic grant of injunctive relief based on the presumption of irreparable harm. As the Federal Circuit has since certified, “eBay jettisoned the presumption of irreparable harm as it applies to determining the appropriateness of injunctive relief.” Granted, the Federal Circuit has specified this development “does not swing the pendulum in the opposite direction,” noting the fundamental exclusivity of a patent property right must still be considered in the analysis. Nonetheless, a trend began in the post-eBay era for district courts to forgo permanent injunctions and instead award ongoing royalty damages.

Another noteworthy aspect of the eBay decision is that it requires district courts to affirmatively address public interest considerations in their injunction analyses. District courts have since deferred strongly to Justice Kennedy’s eBay concurrence in their own decisions.92 As such, some observers argue the concurrence is even more impactful than the unanimous majority.93

The Federal Circuit has since reflected on the public interest prong in several decisions. The court notably affirmed the public’s “strong” interest in maintaining patent property rights as a driver of innovation. Nonetheless, the court has expressed that the “touchstone” for adjudicating an injunction request involves “strik[ing] a workable balance between protecting the patentee’s rights and protecting the public from the injunction’s adverse effects.”

The Federal Circuit, in Amgen, Inc. v. Sanofi, described the public interest prong as its own independent requirement. There, the Federal Circuit went so far as to characterize the injunction the district court granted despite a finding it would be a disservice to the public interest, as a “clear violation of eBay.” To that end, the Federal Circuit has favored injunctions tailored to avoid unduly disrupting markets and consumer interests.