Clarity in Remedies for Patent Cases
40 Pages Posted: 11 Dec 2019
Date Written: January 1, 2018
This Article summarizes more detailed work done elsewhere and argues that after more than a decade of disjointed application and discussion regarding eBay’s precedent, it is time to add clarity to remedies for patent cases. Part I chronicles the history of the eBay case and the party and procedural case facts that led to a perfect storm of precedential confusion. Part II reviews the empirical evidence of a shift in patent remedies decisions in the aftermath of eBay. This Part details the significant differences in injunction decision outcomes between district courts and the Federal Circuit: compared to district courts, the Federal Circuit remains inclined toward injunctions, applying a property-rule remedy to prevent future infringement. Part II further reviews the significance of the Supreme Court’s 1908 Continental Paper Bag opinion, which confirmed injunction remedies for non-using patent owners, and which was reaffirmed in eBay, although the decision has continually been forgotten in patent law. This discussion includes a detailed historical review of the century-old case and of Margaret Knight, the “woman Edison” behind the case, who sustained her company through patent enforcement action and injunctive remedy. Part III reviews the work of other scholars in the eBay debate, noting that the equity law precedent has confused other areas of the law and has removed property remedies from patent rights. This Part also summarizes arguments on both sides regarding whether this development is proper — are liability or property rules for patent rights best? Part IV reviews recently proposed legislative changes to address eBay. Finally, Part V concludes by noting the core areas of ambiguity that require clarity in patent case remedies and why the Supreme Court might be best suited to address the ambiguities.
Keywords: Intellectual Property, Patent, Injunction, Remedies, eBay, Federal Circuit, Federal Courts, Patent Trolls, PAEs, Innovation, Empirical
JEL Classification: K11, K19, O30, O34
Suggested Citation: Suggested Citation