EBay changed the scope---it changed the difficulty it took to get injunctions and Congress is refusing to pass anything that alters that.

“Despite the STRONGER Act seeking to overturn eBay, Congress at large has no desire to disturb this Supreme Court decision, and any bill that contains a provision overruling eBay cannot be enacted.”

"The USITC in Washington DC." Licensed under CC BY-SA 3.0.

“The USITC in Washington DC.” Licensed under CC BY-SA 3.0.

Prior to the Supreme Court’s decision in eBay v. MercExchange, 547 US 388 (2006), it was fairly routine for a victorious patent owner who prevailed on a finding of infringement in a federal district court litigation to assume that a permanent injunction would issue to prevent ongoing infringement. After all, a patent is the grant of an exclusionary right to the patent owner by the federal government, and a permanent injunction would merely operate to allow the district court to retain jurisdiction over the matter it already adjudicated in the patent owner’s favor—should the infringing activity continue. Without a permanent injunction, a patent owner is forced to start afresh and file a new infringement action to remedy ongoing, recalcitrant infringement. With a permanent injunction, however, the patent owner can request expedited consideration by the district court to determine whether the one-time defendant was continuing to infringe despite the patent grant, despite losing an infringement action, and despite being ordered to stop infringing.

Decades of Precedent Die

The Supreme Court’s decision in eBay overturned the district courts’ practice of generally granting permanent injunctions on a finding of infringement and substantively changed the final result of a successful patent litigation for many, if not most, patent owners. In eBay, the Supreme Court determined that, in order to receive a permanent injunction in a patent litigation in federal district court, the victorious plaintiff must demonstrate that: (1) it has suffered an irreparable injury; (2) remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) the public interest would not be disserved by a permanent injunction. This four-factor test should be recognized as the familiar four-part test outlining the equitable considerations that are a prerequisite to the proper issuance of an injunction.

Requiring patent owners to satisfy the four-part equitable test prior to being granted an injunction changed decades of well-established precedent, and made little sense for most patent owners given the nature of the patent right itself being exclusive in nature, which by its very terms is prohibitory. Notwithstanding, the four-part test for the issuance of an injunction in patent cases is now the law of the land, and is uniformly applied in federal district courts throughout the United States. Therefore, it is now possible for a victorious patent owner in federal district court to ostensibly have an exclusive right issued by the federal government, and no effective remedy to enforce the exclusivity promised in an Article III federal court.