The Misinterpretation of eBay v. MercExchange and Why: An Analysis of the Case History, Precedent, and Parties

58 Pages Posted: 28 Feb 2015 Last revised: 27 May 2015

See all articles by Hon. Ryan T. Holte

Hon. Ryan T. Holte

The University of Akron School of Law; United States Court of Federal Claims

Date Written: February 26, 2015


eBay v. MercExchange, 547 U.S. 388 (2006) is approaching a decade of citation and, in that time, the landscape for injunctions in patent infringement cases has changed dramatically. Can revisiting the case give us a better understanding of how the standards for injunctions should be understood post-eBay, perhaps in contrast to how they are understood? The purpose of this article is to extract that detail regarding the eBay injunction denial from primary sources. This research focuses solely on the injunction issue post-trial to case settlement. The article next assesses the impact of eBay on district courts, inventors, news stories, intellectual property investors, and others over the last decade. Finally, based in part on a review of court opinions considering permanent injunctions since eBay, and court citations to eBay’s concurring opinions by Chief Justice Roberts and Justice Kennedy, the article argues that the case has largely been misinterpreted by district courts and others for various reasons including: improper reliance on Justice Kennedy’s concurrence; misleading media coverage; eBay’s public relations efforts to spin media attention in its favor; a district court judge generally biased against patent owners and uniquely concerned with the wide disparities between the parties, the motives of MercExchange, and the vast consequences an injunction may bring against the world’s largest auction marketplace; and the fact that the case settled after the district court’s second denial of an injunction but before the Federal Circuit could revisit the issues. The article concludes by emphasizing that eBay should be cited for what the Court actually held, and not for how the case has been (mis)interpreted these last ten years.

Keywords: injunctions, non-practicing entity, NPE, patent troll, patent litigation, innovation, intellectual property law

JEL Classification: D2, K1, K20, L51, O31, O32, O34, O38

Suggested Citation

Holte, Hon. Ryan T. and Holte, Hon. Ryan T., The Misinterpretation of eBay v. MercExchange and Why: An Analysis of the Case History, Precedent, and Parties (February 26, 2015). 18 Chapman Law Review 677 (2015), Available at SSRN:

Hon. Ryan T. Holte (Contact Author)

United States Court of Federal Claims ( email )

717 Madison Place, NW
Washington, DC 20005
United States

The University of Akron School of Law ( email )

150 University Ave.
Akron, OH 44325-2901
United States
4156152789 (Phone)


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