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Abstract

Before the unanimous decision in eBay v. MercExchange, patent holders were almost always granted an injunction against an infringer. In fact, the Federal Circuit, in deciding eBay, noted that, upon a finding of infringement, an injunction would issue unless there were extraordinary circumstances. The Court, in a brief opinion, disagreed with the Federal Circuit and explained that the injunction issue in a patent case must be analyzed under the traditional four-factor test.[...] Is the four-factor test fairer or better than the Federal Circuit's near-automatic injunction rule? It is certainly more difficult to administer a factor test as compared to a bright-line rule. On the other hand, district courts undertake this type of inquiry all the time, although the inquiry is not usually in the context of the complex world of patents and incentives to innovate. At least one member of the Supreme Court, Justice Kennedy, seemed to believe that this change would primarily affect patent trolls. Of course this statement expressly ignores the opinion of Justice Thomas who noted that special consideration might be appropriate when the patentee is a university or small inventor.