Overturning eBay would flood the courts with patent litigation
Langdon 20-Logo for Fabricant LLP Evan Langdon is a Partner and the Chair of the International Trade Commission (ITC) Litigation Practice at Fabricant LLP.Evan is an experienced first chair trial attorney who focuses his practice on Section 337 investigations before the ITC, intellectual property litigation in U.S. District Courts, and appeals before the Federal Circuit. Evan counsels clients on the nuances of navigating fast-paced ITC Section 337 litigation involving patents, trademarks, trade dress, and other unfair acts.Evan’s practice is dedicated to representing U.S. and foreign companies on intellectual property matters before the ITC and U.S. District Courts. He leverages his mechanical engineering background and experience as a primary examiner at the United States Patent and Trademark Office to litigate disputes across a wide variety of industries including LED lighting and display devices, mobile electronic devices and chipsets, data processing systems, semiconductors, lighting control devices, consumer electronics and accessories, shoes, household appliances, automotive, sporting equipment, and various mechanical devices.Recognized among the nation’s top ITC Section 337 practitioners by Chambers USA, Evan has represented clients in more than thirty ITC Section 337 investigations. He is adept at navigating the unique and complex procedural and technical issues of Section 337 investigations, and the rigorous economic analyses required for domestic industry and public interest. Evan also guides clients through post-investigation enforcement efforts.Prior to joining Fabricant, Evan was a partner at Nixon Peabody LLP, serving as the leader of the ITC Section 337 team. Prior to Nixon Peabody, Evan was a partner at Adduci, Mastriani and Schaumberg LLP. (Evan Langdon. “The Impact of Overturning eBay v. MercExchange”, https://ipwatchdog.com/2020/03/02/impact-overturning-ebay-v-mercexchange/id=119455/#)
As anyone who follows the landscape of patent litigation knows, the Supreme Court’s decision in eBay Inc. v. MercExchange LLC, 547 U.S. 388 (2006) was meant for one primary reason—to combat patent asserted entities (PAEs).[1] It is true that prior to the Supreme Court’s decision in eBay, it was rare for a district court to deny a victorious plaintiff a permanent injunction in a patent infringement case. And PAEs knew that and used the threat of injunctive relief—no matter how remote—to extract license agreements. The STRONGER Patents Act introduced now for the third Congress by Senator Chris Coons (D-DE) has provisions that, if enacted, would overturn eBay. Congress at large appears to have no desire to disturb this Supreme Court decision, and any bill that contains a provision overruling eBay cannot and should not be enacted. Such a bill would reopen the flood gates for PAEs to file patent infringement suits in federal district court armed with the threat of injunctive relief. At a time when most policymakers rightly argue that China and other countries need to do more to clamp down on intellectual property infringement, overturning the four-factor eBay v. MercExchange test would impose new hurdles and increase the PAE problem that Congress and the Supreme Court fought to address over the last two decades. Despite the Supreme Court’s decision in eBay, PAEs remain a problem in district court litigation today. In 2013, according to a report by the U.S. International Trade Commission, 60% of all district court patent suits were brought by PAEs. In 2018, that number remained steady with PAEs accounting for 55% of all district court patent suits. See 2018 Patent Dispute Report: Year in Review (Jan. 2, 2019), (last visited Feb. 21, 2020). As correctly noted in Gene Quinn’s February article Why eBay v. MercExchange Should, But Won’t, Be Overruled, the fallout of the Supreme Court’s eBay decision is that the United States International Trade Commission (ITC) has become a far more desirable forum for patent owners. The ITC allows patent owners the ability to obtain an exclusion order that prevents importation into the United States products found to infringe a valid intellectual property right. This provides great relief to complainants who can avail themselves of the ITC’s jurisdiction under Section 337 of the Tariff Act of 1930, 19 U.S.C. § 1337. First and foremost, Section 337 is a trade statute, and the ITC is tasked with administering enforcement of the statute. The ITC investigates whether there is an unfair act in the importation of products into the United States. Section 337 defines such unlawful acts as, among other things, infringement of a valid patent, copyright, or registered trademark.