Obtaining Injunctions Under eBay Versus at the International Trade Commission

“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.

Enter, the ITC

In light of eBay, the U.S. International Trade Commission (ITC), which has always played a large role in patent litigation and enforcement strategies because of its statutory authority to issue exclusion orders and cease and desist orders, emerged as an important forum for patent owners. The ITC is an independent, nonpartisan, quasi-judicial federal agency that fulfills a range of trade-related mandates. One such mandate arises under Section 337 of the Tariff Act of 1930, 19 U.S.C. § 1337, which requires the ITC to determine whether there is an unfair act in the importation of products into the United States, and/or subsequent sale of products in the United States. Section 337 defines the infringement of a patent, copyright, registered trademark or mask work to be such an unlawful act.

The ITC does not follow the Supreme Court’s precedent in eBay v. MercExchange, which interpreted Section 283 of the Patent Act, 35 U.S.C. § 283, and instead operates under Section 337 of the Tariff Act of 1930. It is important to understand that the ITC is not ignoring the Supreme Court, but rather the statutory charge of the ITC is decidedly different from that of a federal district court and the Supreme Court’s decision is simply not applicable. “The difference between exclusion orders granted under Section 337 and injunctions granted under the Patent Act, 35 U.S.C. § 283, follows ‘the long-standing principle that importation is treated differently than domestic activity.’” Spansion Inc. v. International Trade Commission, 629 F.3d 1331, 1359 (Fed. Cir. 2010). An ITC exclusion order, for all intents and purposes, is effectively a form of injunctive relief.

Unlike the patent laws, Section 337 is a trade statute that does not provide monetary damages. Its effectiveness relies entirely on the power to exclude unfair imports and the subsequent sale of unfairly imported products. The eBay decision, in contrast, involved federal district courts operating under a different statute entirely, which does authorize monetary damages and also specifically authorizes federal district courts to issue injunctions.

eBay is Incompatible with the ITC

The fact that monetary damages and injunctions are obtainable in federal district court and not at the ITC is precisely why the ITC should not fall within the eBay four-factor analytical structure. For example, the first eBay factor—irreparable harm—is generally defined by the courts as harm that cannot be recompensed financially. The very purpose of Section 337 is to ensure that domestic industries have an exclusionary remedy against infringement when the infringing party is overseas and, often, beyond the reach of U.S. courts. It is irrelevant to make a determination that the complainant has suffered “irreparable harm” as a condition of relief when the ITC has no authority in the first place to order the infringer to pay damages in lieu of exclusion or cessation. Moreover, the second and third eBay factors relating to remedies at law have no applicability to Section 337, because the purpose of Section 337 is to provide exclusionary relief when there may be no remedies available at law.

Finally, regarding the fourth eBay factor—public interest—Section 337 requires careful consideration of four enumerated public interest factors before any remedial measures can issue: the effect of any order on “the public health and welfare, competitive conditions in the United States economy, the production of like or directly competitive articles in the United States, and United States consumers.” In contrast to district court, the ITC’s examination of the statutory public interest factors, and the required presidential review on national economic and policy grounds, provide a safeguard greater than the public interest considerations afforded by eBay.

Like it or Not, Overturning eBay is Not on the Table

Fundamentally, the ITC and the federal courts are charged with different responsibilities, which is why the eBay decision does not apply to decisions of the Commission. Whether eBay should be overruled and no longer applicable to federal court disputes is hotly debated, and a point on which we the authors disagree (stay tuned for more).

What is indisputable, however, is that despite the STRONGER Patents 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. Thus, the ITC will remain an important forum for at least some patent owners for the foreseeable future.


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Join the Discussion

34 comments so far.

  • [Avatar for Anon]
    February 12, 2020 09:52 am

    You slumber IN your emotions and are NOT awake in the cognitive functions.

    My advice to you remains the same: do not let your emotions wipe out your reason.

  • [Avatar for angry dude]
    angry dude
    February 11, 2020 09:05 pm



    I am awake and angry as hell

    Fool me once – shame on you, fool me twice – shame on me

  • [Avatar for Anon]
    February 11, 2020 01:42 pm

    Your desire to throw away reason and only react to emotion is to your detriment, angry dude.

    Wake up son.

  • [Avatar for angry dude]
    angry dude
    February 11, 2020 12:30 pm

    Anon @30

    Your legal mumbo jumbo is completely unworkable nonsense and you perfectly know it

    You are a paid shill trying to distract reader’s attention from real pressing issues like rampant corruption in wash dc

  • [Avatar for Anon]
    February 11, 2020 08:26 am

    And again, angry, a meaningless post from you.

    Maybe appreciate the actual content of our respective posts. Is there a reason why you refuse to see that your “just quit” message is exactly what the Efficient Infringers want?

    If anyone is a shill here, it would be the one that is actually presenting the message that the Efficient Infringers want.

    Which of us does that?

    (Hint: that would be you).

  • [Avatar for angry dude]
    angry dude
    February 10, 2020 09:06 pm


    legal tactics ? seriously ??? at this point ??????

    Methinks you are a paid shill for Apple or Google

  • [Avatar for Anon]
    February 10, 2020 06:46 pm

    Don’t you ever tire of being the mouthpiece of the Efficient Infringers?

    Maybe you should put your energy into understanding the legal tactics that may be used (instead of seeking to dismiss them).

    Why exactly ARE you in such a hurry to denigrate and dismiss legal reasoning?

    Are you not capable of understanding? Is this why you have SOLELY dealt in emotion?

    Do you not understand the way that legal change works? That being purely of emotion (and just shouting) is the LEAST effective way forward? That getting YOU to be merely emotional nullifies any cogent step forward that you may at any point may have had?

    Please stop being a tool.

  • [Avatar for angry dude]
    angry dude
    February 10, 2020 03:31 pm



    We are WAY past your nonsensical legal mumbo jumbo no congressional critter will even bother to read much less understand

    It’s a bloody murder, an armed robbery in public

    In any other area of law like gun control there would be a major public revolt and blood in the streets if US government agencies acted like that
    But patents ? wtf cares except less than 1% of the US population… for the time being… until this country fails.. . and it WILL fail… then they’ll notice

    Patent injunctions are not coming back. Period.
    To the morgue with US Patent System
    Gotta go to China

  • [Avatar for Anon]
    February 10, 2020 11:57 am

    Returning to the topic of the post, may I offer an alternative view (and path)….?

    Rather than any Act of Congress seeking to repeal any Supreme Court decision, Congress MAY be induced to pass a “clarifying” law (perhaps adding it to its decision to share its own authority in 35 USC 283.

    For example, Congress COULD add to that section (or perhaps to the definition section of 35 USC 100), the following understandings:

    A patent right, being a negative right, is not to be confused with any positive action of manufacturing or selling any good or service that may fall under the scope of a patent claim.

    Violation of a patent right then, is not to be strictly associated merely with any such good or service, and the damage rendered to a patent holder upon a showing of infringement is not limited to any such monetary damages associated with the positive aspects of actions that flow only as a subsequent and tangential relationship to the negative right of a patent right.

    Current allocation (permission) of authority from the branch of the government to which patent law is solely provided to the branch of the government related to dealing with notions of equity in actions of remedy must consider the following principles of equity:
    1) the first principles of equity is to make the aggrieved as whole as possible.
    2) the second principle of equity is that this making the aggrieved as whole as possible is not always done so with monetary damages, and that the court must look to the nature of the right aggrieved.
    3) the general nature and view that “injunctions” are a harsh form of remedy must NOT overtake the reason and control of the permission of the Congress to the judicial branch to provide for equity. This is to be understood that the Constitutional propriety of one branch sharing with another its power is to be strictly observed, and the principles of equity must first and foremost be concerned with the aggrieved. In plain words then, the dictate of Congress of “to prevent the violation of any right secured by patent” is not an excuse to provide an equitable resolution that does not fully respect and recognize the negative right nature of what “secured by patent” entails.

    With this as a controlling guidance, there need be no actual ‘repeal’ of the Supreme Court’s decision in eBay (and the practical application would be a full restoration of what a patent right already means.

  • [Avatar for Anon]
    February 10, 2020 09:36 am

    angry dude,

    The tale that you want to weave — that you were some type of “lone wolf, ignored by all” is quite frankly B$.

    To wit: “ So… finally we are inside this patent “black hole” as I predicted back in 2006 … and folks can ridicule me all they want now … only to make fools out of themselves” is false in the sense that you alone had any outrage, or even that you alone gave anything near a cogent legal basis for your emotions.

    I invite you (yet again) to use reason, rather than rely solely on emotion.

    And please come to grips that any ridicule that comes your way (leastwise from me) is because your posts lacking in reason ARE the tool of the Efficient Infringers. You continue to ignore this solely at the expense of your own ‘persuasiveness.’

  • [Avatar for angry dude]
    angry dude
    February 9, 2020 10:50 pm

    There was a Special Prosecutor tearing Bill Clinton’s private life apart for the entire world to laugh…

    There was one for Donald Trump…

    Will there be one for Tim Cook and Co. ? (Jobs is dead anyway)

    I don’t think so .. because you know … “pecunia non olet”

    The scene from the movie “The Aviator” is just not possible in today’s shameless and super-corrupt wash dc culture – when it comes to money they all stand united – trump, bezos, pelosi, cook etc etc

    “The Aviator”:

    Howard Hughes: Are you sure you want to do this, Owen? You want to go to war with me?

    Sen. Ralph Owen Brewster : It isn’t me, Howard. It’s the United States government. We just beat Germany and Japan. Who the hell are you?

  • [Avatar for angry dude]
    angry dude
    February 9, 2020 07:26 pm

    “EBay appealed and the Supreme Court granted certiorari, issuing its decision on May 15, 2006. … The Court found that neither the district court nor the Federal Circuit had correctly applied traditional equitable principles in assessing MercExchange’s motion for a permanent injunction”

    “On January 9, 2007, Steve Jobs announced the first iPhone at the Macworld convention, receiving substantial media attention. Jobs announced that the first iPhone would be released later that year. On June 29, 2007, the first iPhone was released.”

    I can assert that no one in SV (except Ebay itself) was giving a sh1t about that useless “Buy It Now” feature of EBay website to be shut down by MercExchange patent

    The MercExchange e-commerce “junk” patent was carefully chosen to thoroughly f^&* the rest of us – small US tech companies with fundamental technical inventions threatening Apple’s domination
    That’s all to it (Special Prosecutor will get to the bottom of this one day… witness cross-examinations … depositions… the names… the sums… the whole truth…hopefully… someday)

  • [Avatar for angry dude]
    angry dude
    February 9, 2020 06:54 pm

    mike @21

    “Pecunia non olet” is your answer

    Trust me on this – I know more than Gene knows on this particular subject of injunctions – the originators and the driving forces behind Ebay decision
    That’s why I was freaking out here on this blog back in 2006 but no one believed me – NO ONE !

    So… finally we are inside this patent “black hole” as I predicted back in 2006 … and folks can ridicule me all they want now … only to make fools out of themselves

  • [Avatar for mike]
    February 9, 2020 04:34 pm

    Gene @ 7:

    Ok then. Gene, you provide no basis for such a conclusory statement. Can you provide evidence and rationale from the current 100 Senators and 435 Representatives in support of your claim?

    Knowledge on who they are and what their particular objections are is the only way to begin solving eBay.

  • [Avatar for Anon]
    February 9, 2020 07:09 am

    More mouthing of the Efficient Infringer line of ‘just give up, don’t bother’ from you, angry?

    Why do you keep doing what the Efficient Infringers want you to do?

  • [Avatar for angry dude]
    angry dude
    February 8, 2020 05:08 pm

    Anon @18

    Forget about being blocked by patents – injunctions in US are rare even when direct manufacturing competitors are involved (Bunch-of-Balloons would be good example of hard-won injunction at 8(!!!) figure expense)

    Being abused by big corporate freeloaders eating smaller patent holders for free lunch is what really killed US Patent system

    US Patent System is now dead and stinking

    To the morgue then…

  • [Avatar for Anon]
    February 8, 2020 12:34 pm

    Reading again does not diminish the utter inanity of TFCFM’s view of patent law.

    To wit: “ and, in the absence of authors and inventors employing such rights, to impede others from doing so unless limitless ransom be paid.” beggars the imagination and the fundamental misconception of what is to be “employed.”

    TFCFM advances a notion of ‘positive action’ to be employed where NO such positive action related to what a patent right means exists.

    This is well beyond any “tyranny of the ‘just doing it’,” and is in fact the voice of one who speaks without understanding.

    There is both a stick and a carrot to patent law. TFCFM views the stick as unjust and paints as “ransom” that which STIRS innovation. Being blocked is a good thing, and those that understand innovation, understand that this sense of being blocked is what drives the adage of “Necessity is the mother of invention.”

  • [Avatar for angry dude]
    angry dude
    February 7, 2020 11:16 pm

    Re. practicing vs non-practicing entities

    I can’t believe we are even having this discussion in 2020…

    The inventor of a better mousetrap is not legally allowed to produce his better improved mousetrap UNTIL all patents on the basic mousetrap (held by large incumbent manufacturers) run out or some licensing/cross-licensing agreement is achieved
    Patent Laws as designed by The Founding Fathers were meant to protect that little hapless garage inventor of a better mousetrap from being immediately ripped off by the large incumbent mousetrap manufacturers

    Patent is ONLY a negative right – the right to exclude, not the right to produce

    In certain (very very few) fields like pharmaceutical compounds or simple toys like the bunch-of-balloons one patent equals one product so “theoretically” it gives you the right to produce your invention
    No such thing in hi-tech – the inventor of an improved smartphone (e.g. me) still needs to obtain legal rights under the rest of 25,000 patents covering basic smartphone (unless you are Apple or Google – then damn the torpedoes, full speed ahead, we’ll take care of legal issues later by e.g. appointing USPTO director, CAFC judges or at the very least PTAB APJs)
    Why is this so difficult to understand ???

  • [Avatar for Anon]
    February 7, 2020 02:59 pm


    The most direct answer to you is that compulsory licensing violates the very nature of what the US patent IS.

    That is not a compromise.
    That is an abdication.

  • [Avatar for Anon]
    February 7, 2020 02:54 pm


    You may want to recalibrate your understanding of patent law (in light of what patents actually are) and realize that the promotion is directly tied to the Quid Pro Quo of full legal property rights for the publication of the patent that has been examined and deemed to be in compliance with the applicable provisions.

    There is NOTHING more involved with “promotion.”

    Once you understand this, then you should be able to grasp that your two proposed solutions are not solutions at all.

    You inject only fallacies with your proposals.

  • [Avatar for angry dude]
    angry dude
    February 7, 2020 02:15 pm

    Jam @12


    It’s already compulsory licensing enforced on us… in case you haven’t noticed

    The only problem is that the license price is zero, zilch, null, free as in beer

  • [Avatar for Anon]
    February 7, 2020 02:02 pm


    Another non-actual law blunder on your part:

    that are actually using

    Patent rights are negative rights.
    Patent rights are ONLY negative rights.

    There is NO concept of “actually using” within the sphere of patent rights.

  • [Avatar for Jam]
    February 7, 2020 12:50 pm

    Gene @7

    Sounds like “Congress will NOT pass anything that overrules eBay” may also apply to the Inventor Rights Act [1], since it would undo some harmful effects from eBay. Or is it possible that the Inventor Rights Act is limited enough to be an acceptable compromise?

    What about a compromise of “actually fixing 101” so that anything under the sun is again patentable but then compromising on compulsory licensing? At a high level, compulsory licensing seems to work for the music industry. Patents are different than music and the scheme would need to be different, but if inventors can legitimately get paid for disclosing their inventions, then it seems like there should be a route to an acceptable compromise that, at least, provides some arguably reasonable compensation to inventors for their disclosure. Whether an inventor gets payed enough (e.g., enough to start a competing business) becomes a question setting the correct rate.

    It seems like the pro small inventor community is shooting itself in the foot by not even considering options for what would make for an acceptable compulsory licensing scheme. I.e., first figure out what would be an acceptable compromise, then figure out how to rewrite the laws to make it effective.

    [1] https://www.ipwatchdog.com/2020/02/03/look-inventor-rights-act-restoring-injunctive-relief-immunizing-inventors-ptab/id=118460/

  • [Avatar for anonymous]
    February 7, 2020 10:50 am

    Gene, can you clarify then what you mean by “overrule eBay”? No one is suggesting changing 35 U.S.C. 283 to say an injunction MUST issue. That would be overruling eBay, taking injunction out of the equitable jurisdiction of the courts applying the traditional four-factor test.

    To be clear, Congress does have constitutional authority to do that if they desired, but you’re arguing the political will is not there to completely take equitable discretion from the courts.

    I argue there may be political will to clarify certain portions of the four-part equitable test, necessary to curb the dangerous and harmful “efficient infringement” business model. To me, creating a rebuttable presumption that infringement causes irreparable injury is not “overruling eBay” but rather clarifying it. Equitable discretion remains with the court. The four-factor test is still applied. There is no categorical denial of injunction to self-made inventors exercising their reasonable preference to license rather than to bring their works to market themselves. There is no requirement an injunction must issue. All of this is entirely consistent with eBay, “hold[ing] only that the decision whether to grant or deny injunctive relief rests within the equitable discretion of the district courts . . .”

    No one is suggesting “overruling eBay.”

  • [Avatar for TFCFM]
    February 7, 2020 10:47 am

    ad@#5: “Patent injunctions are not coming back. Period.

    Although your assertion may still be an exaggeration even with this amendment, I think your assertion ought at least to be amended to read:

    “Patent injunctions for non-practicing entities are not coming back. Period.”

    Authors and inventors who are actually using their respective writings and discoveries to promote the progress of science and useful arts (rather than solely stand as a toll booth in the path of others who would perform such promotion) will ordinarily have little difficulty satisfying the four-part test applicable to injunctions in all areas of US law.

    Folks unhappy with that situation face the choices of:
    1. Getting Congress to enact a law that says that “patent law is special” as regards injunctive relief or
    2. Amending the Patents Clause of the Constitution to read

    “The Congress shall have power… To promote the progress of science and useful arts but also to impede such progress, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries and, in the absence of authors and inventors employing such rights, to impede others from doing so unless limitless ransom be paid.”

  • [Avatar for Paul Johnson]
    Paul Johnson
    February 7, 2020 10:16 am

    Gene Quinn…

    What do you think are the chances of a practicing entity obtaining an injunction against an infringing competitor?

  • [Avatar for Anon]
    February 7, 2020 10:10 am


    That our Congress has so decided is indeed sad.

    I would prefer an affirmative statement to that effect from the direct members of those committees so that the voting public could then come to understand just what the people they are voting for ‘believe’ in.

    There is a reason (accountability) — and related mechanisms — for placing the patent power (that is, the power to write the actual law) in the branch of the government most directly responsive to the people.

    As an aside, the capture of Congress BY juristic persons (corporations) and the impossible to match “voice” of lobbying dollars has a very real and self-evident effect on what will — and what will not — be considered.

    It is far past time to constrain the effects of such cases as Citizens United and cabin the power of non-real persons.

  • [Avatar for Gene Quinn]
    Gene Quinn
    February 7, 2020 09:34 am

    Mike @1 and Pro Say @2…

    Please don’t miss the fact that I wrote half of this article, and the part that you are criticizing about Congress having no interest in passing legislation to overrule eBay is something I wrote.

    I can guarantee you that Congress will NOT pass anything that overrules eBay. It is well known in Washington, DC that any bill containing provisions that would overrule eBay would not make it out of the Senate IP Subcommittee. In fact, a bill that contains a provision overruling eBay will NOT even receive a vote up or down in the Senate IP Subcommittee. You can bet your house on that.

    So, if you have a problem with that part of the story, please direct your ire at me. But also realize I am just the messenger telling you what I know to be true. I am not guessing.

  • [Avatar for angry dude]
    angry dude
    February 6, 2020 11:08 pm

    Let’s spell it out for everyone:

    The Stronger Patents Act and the newly introduced Inventor’s Rights Act are dead on arrival

  • [Avatar for angry dude]
    angry dude
    February 6, 2020 10:38 pm


    You have no clue about this subject.
    Patent injunctions are not coming back. Period.
    Restoring injunctions to pre-Ebay means a bunch of dudes coming out of woods to go after Apple, Google, Amazon, Facebook, Cisco, Microsoft etc. etc.
    Alas, not gonna happen at this point…
    Trump may hate the guts of bezos, google punks and apple lgbts but when it comes to money they all stand united
    Pecunia non olet (“money does not stink”)
    To the morgue with US patents
    Gotta go to China

  • [Avatar for angry dude]
    angry dude
    February 6, 2020 05:34 pm

    “For example, some patent holders, such as university researchers or self-made inventors, might reasonably prefer to license their patents, rather than undertake efforts to secure the financing necessary to bring their works to market themselves. Such patent holders may be able to satisfy the traditional four-factor test, and we see no basis for categorically denying them the opportunity to do so.”

    So the SCOTUS justices LIED ! THEY LIED !!!

    Old liars in black robes…

    To the morgue with US patents

  • [Avatar for anonymous]
    February 6, 2020 05:23 pm

    Hogwash. Congress has constitutional authority ONLY to act “by securing” “the exclusive right” to “inventors.” Article 1, Section 8. The Constitution says nothing about Congress having authority to impose a compulsory licensing scheme upon inventors, once duped into thinking they had an ACTUAL right to exclude.

    35 U.S.C. 154 states, “Every patent shall contain a . . . grant to the patentee . . . of the right to exclude others . . .” The words “by securing” and “the exclusive right” cannot be read out of the Constitution to substitute a compulsory license and cannot be rendered surplusage without effect, especially when the words “the exclusive right” from the Constitution are tracked by the corresponding statutory language “every patent” and “the right to exclude others.” Marbury v. Madison, 1 Cranch 137, 174 (1803) (“It cannot be presumed that any clause in the constitution is intended to be without effect”).

    35 U.S.C. 283 states, “The several courts having jurisdiction of cases under this title 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.” The permissive “may” does not provide any public interest in allowing patent infringement and does not and cannot function to excise the words “by securing” and “the exclusive right” from the Constitution nor the words “Every patent shall contain a . . . grant to the patentee . . . of the right to exclude others” from 35 U.S.C. 154.

    The “right to maintain exclusivity” over one’s property is “a hallmark and crucial guarantee of patent rights deriving from the Constitution itself.” Apple v. Samsung, 801 F.3d at 1365.

    In eBay, SCOTUS said merely to apply the four prong test for injunction. SCOTUS made clear that “some patent holders, such as . . . self-made inventors, might reasonably prefer to license their patents, rather than undertake efforts to secure the financing necessary to bring their works to market themselves. Such patent holders may be able to satisfy the traditional four-factor test [for injunction], and we see no basis for categorically denying them the opportunity to do so.” eBay, 547 U.S. at 393.

    Thus, there is NO CATEGORICAL RULE FROM EBAY that injunctions are not to be granted. Lower courts are mis-applying eBay the same way they mis-apply Alice. The irreparable harm prong can still be met where there is only an affront to the “right to exclude” because inventors “might reasonably prefer to license their patents.”

    Second, a patent’s term relates ONLY to the duration of the “right to exclude.” The “term” of 154(a)(2) clearly relates to the “exclusive right” of 154(a)(1). There is no statute saying term relates to the length of a compulsory license.

    Congress would be fully constitutionally justified to restore an actual right to exclude, as the Constitution requires.

  • [Avatar for Pro Say]
    Pro Say
    February 6, 2020 01:58 pm

    “Congress at large has no desire to disturb this Supreme Court decision and any bill that contains a provision overruling eBay cannot be enacted.”

    Thanks for your contribution to the article, Evan, but unless you’re a mind reader (or have taken a secret poll of all of our 100 Senators and 435 Representatives — please let us know if you have), you provide no reasoned basis for such a conclusory statement.

  • [Avatar for mike]
    February 6, 2020 01:04 pm

    “Congress at large has no desire to disturb this Supreme Court decision and any bill that contains a provision overruling eBay cannot be enacted”

    And you know this because…

    Tip: Who is our President right now, and what was it that people said about his chances of being elected?