eBay Rx

Akron Intellectual Property Journal, Vol. 2, No. 187, 2008

U of Akron Legal Studies Research Paper No. 08-01

13 Pages Posted: 17 Feb 2008

See all articles by Tracy A. Thomas

Tracy A. Thomas

University of Akron School of Law


From a remedial perspective, the decision of the U.S. Supreme Court in eBay Inc. v. MercExchange, L.L.C reopened the age-old question of what it means to award equitable relief. In eBay, the Court rejected a permanent injunction issued by the U.S. Court of Appeals for the Federal Circuit to protect a business-method patent that defendant eBay had infringed on its successful auction website. This essay diagnoses the remedial problem in eBay as the improper use of presumptions for equitable relief that effectively prioritizes selected legal rights. It offers a prescriptive cure for the problem in the traditional balancing of the equities standard that emphasizes the respective equities of the private parties, including their economic motivations and inequitable conduct. This signifies a return to the historical notion of equity as a legal accommodation of private and public interests in pursuit of justice.

This essay was written as part of the Akron Intellectual Property Scholars Roundtable and its conference exploring the legal implications of the eBay case.

Keywords: injunctions, remedies, patents, equity

JEL Classification: K1

Suggested Citation

Thomas, Tracy A., eBay Rx. Akron Intellectual Property Journal, Vol. 2, No. 187, 2008; U of Akron Legal Studies Research Paper No. 08-01. Available at SSRN: https://ssrn.com/abstract=1094304

Tracy A. Thomas (Contact Author)

University of Akron School of Law ( email )

150 University Ave.
Akron, OH 44325-2901
United States
330-972-6617 (Phone)
330-258-2343 (Fax)

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