Patent Injunctions on Appeal: An Empirical Study of the Federal Circuit's Application of eBay

70 Pages Posted: 1 Aug 2016 Last revised: 21 Sep 2016

Ryan T. Holte

Southern Illinois University School of Law

Christopher B. Seaman

Washington and Lee University School of Law

Date Written: July 29, 2016

Abstract

Ten years after the U.S. Supreme Court’s 2006 seminal decision in eBay v. MercExchange, the availability of injunctive relief in patent cases remains hotly contested. For example, in a recent decision in the long-running litigation between Apple and Samsung, members of the U.S. Court of Appeals for the Federal Circuit sharply divided regarding whether an injunction was warranted to prevent Samsung from continuing to infringe several smartphone features patented by Apple. To date, however, nearly all empirical scholarship regarding eBay has focused on trial court decisions, rather than the Federal Circuit.

This article represents the first comprehensive empirical study of permanent injunction decisions by the Federal Circuit following eBay. Through an original dataset of appeals in nearly 200 patent cases — representing all cases involving contested permanent injunction decisions for a 7½ year period after eBay — we assess the impact of the Federal Circuit on the availability of permanent injunctions. The findings from this study indicate that the Federal Circuit is generally more favorable to prevailing patentees regarding permanent injunctive relief than the district courts following eBay. District courts that grant an injunction after a finding of liability are highly likely to be affirmed on appeal, whereas district courts that deny an injunction have a statistically significant lower affirmance rate. This suggests the Federal Circuit is generally inclined toward a property rule rather than a liability rule as a remedy against future patent infringement. It also appears to lend support to claims by scholars and others that the Federal Circuit, as a specialized court with a large number of patent cases, is more pro-patentee than the generalist district courts. Finally, some implications of this and other empirical findings from the study are considered.

Keywords: intellectual property, patent, injunction, remedies, ebay, Federal Circuit, federal courts, patent trolls, PAEs, innovation, empirical

JEL Classification: K11, K19, O30, O34

Suggested Citation

Holte, Ryan T. and Seaman, Christopher B., Patent Injunctions on Appeal: An Empirical Study of the Federal Circuit's Application of eBay (July 29, 2016). Washington Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2816097 or http://dx.doi.org/10.2139/ssrn.2816097

Ryan T. Holte

Southern Illinois University School of Law ( email )

1150 Douglas Drive
Carbondale, IL 62901-6804
United States

Christopher B. Seaman (Contact Author)

Washington and Lee University School of Law ( email )

Lexington, VA 24450
United States
540-458-8520 (Phone)

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