The Supreme Court Engages in Judicial Activism in Interpreting the Patent Law in eBay, Inc. v. MercExchange, L.L.C.

46 Pages Posted: 4 Feb 2008 Last revised: 1 Jun 2014

Abstract

Almost a century ago the Supreme Court held that a patent owner is generally entitled to permanent injunctive relief to prevent ongoing infringement. Lower courts, such as the federal circuit, consistently applied this rule. Nevertheless, in eBay, the Court overruled this general rule. Justice Thomas, writing for a unanimous court, unequivocally repudiated almost a century of precedent in a cursory opinion which is devoid of any explanation or justification for its action. Precedent - a fundamental tenet of our judicial system which facilitates predictable judicial decisions - is undermined by the eBay decision. Chief Justice Roberts, in a concurring opinion, recognized the importance of precedent but failed to explain why he supported rejecting precedent in this dispute. Justice Kennedy, in a second concurring opinion, likewise recognized the importance of precedent. However, he suggested three somewhat dubious reasons for rejecting precedent in this case.

Keywords: patent law, patents, trolls, non-practicing entities, permanent injunction, precedent, ebay

Suggested Citation

Beckerman-Rodau, Andrew, The Supreme Court Engages in Judicial Activism in Interpreting the Patent Law in eBay, Inc. v. MercExchange, L.L.C.. Tulane Journal of Technology & Intellectual Property, Vol. 10, No. 1, 2007, Suffolk University Law School Research Paper No. 08-07, Available at SSRN: https://ssrn.com/abstract=1089537

Andrew Beckerman-Rodau (Contact Author)

Suffolk University Law School ( email )

120 Tremont Street
Boston, MA 02108-4977
United States
617-573-8557 (Phone)
617-305-3086 (Fax)

HOME PAGE: http://www.lawprofessor.org

Do you have negative results from your research you’d like to share?

Paper statistics

Downloads
209
Abstract Views
1,715
Rank
264,034
PlumX Metrics