Ebay is goldilocks---allows injunctions when companies compete but blocks patent trolls

Several previous studies have found that prevailing patentees still receive permanent injunctions approximately three-quarters of the time following eBay. One article published in 2008 found that district courts awarded permanent injunctions in approximately 78% of cases.129 Another study of injunction decisions through May 2009 disclosed that permanent injunctions were granted 72% of the time.130 Similarly, in a 2012 article, Colleen Chien and Mark Lemley reported that “courts have granted about 75% of requests for injunctions, down from an estimated 95% pre-eBay.”131 A recent paper by Kirti Gupta and Professor Jay Kesan found that permanent injunction motions between eBay and 2012 were granted 80% of the time.132 Finally, a database of permanent injunction decisions hosted by the University of Houston Law Center’s Institute for Intellectual Property and Information Law indicates permanent injunctions have been granted 75% of the time from eBay through 2013.133 Although patentees as a whole appear to enjoy a relatively high success rate in obtaining injunctive relief following eBay, prior commentators have noted that patent holders who primarily engage in licensing and litigation— commonly referred to as PAEs134—are much less successful.135 For instance, Chien and Lemley found that through August 2011, district courts granted injunctions to PAEs only 26% of the time—and only 7% of cases where the injunction request was contested by the infringer.136 Similarly, a report by the Federal Trade Commission found that “non-practicing patentees have been less likely than practicing patentees to receive injunctions.”137 Many of these decisions relied on the reasoning in Justice Kennedy’s concurrence suggesting that patent holders who do not practice their patents generally should not receive an injunction because it would give them “undue leverage” in licensing negotiations.138