Dennis Crouch at Patently-O calls eBay v. MercExchange “the most important patent case for the past decade.” (I think that he means that it’s the most important patent case to come along in the last 10 years.) He writes that as an introduction to a detailed summary of all of the briefs filed in the case. Oral argument comes up week after next.
Is he right? More after the jump, and maybe my co-blogger Joe Miller will jump in with a reaction.
The case raises an interesting question: What’s the default remedy for patent infringement? If a prevailing patentee is presumptively entitled to enjoin the infringing defendant, what’s the strength of that presumption? Can a district judge refuse to grant an injunction, and if so, when is denying an injunction — and remitting the parties to damages — appropriate?
From a distance, it might appear that the two sides of the case have fundamentally different views of the nature of patents, the “rights” granted by patents, and the very concept of intellectual property. eBay (the defendant, arguing for a weaker presumption or no presumption at all) supposedly lines up behind an “unfair competition” view, which balances the interests of the rights holder against the interests of the accused infringer, and the interests of the public. MercExchange (the plaintiff, arguing for a strong presumption or a conclusive presumption), supposedly lines up in favor of a “property rights” view, which arrives under the banner of metaphoric absolutism and the “right to exlude.”
As I read Dennis’s summary of the parties’ briefs, however, they seem to agree on the fundamental structure of the law: district judges have discretion to grant or deny injunctions in patent cases, using the same multi-factor test in patent cases that apply in all other civil cases. This isn’t a case about the fundamental character of patents; instead, the parties divide over the frequency with which that multi-factor test tends to favor a prevailing plaintiff. MercExchange suggests that it almost always tilts in favor of injunctive relief. eBay argues that there is a broader class of cases in which it does not. In either sense, however, it seems that both parties are arguing that this is essentially a fact-specific inquiry, not a categorical one. To my mind, that proposition makes this a relatively easy case, since — however the Supreme Court treats the Federal Circuit in its opinion — it is highly unlikely that the Court will conclude that district courts should be bound categorically in patent cases. If I’m right, then it strikes me as equally unlikely that this is, or will be, the most important patent case of the last decade — or the next one.