Tuesday, September 12, 2017

The unintended consequences of eBay

A law review article shows that the impact post-eBay on the granting of injunctions varies by industry type.
From Table 1:

Table 1. Industry classification and injunction grant rate by industry
Industry Sector Grant Rate
Other 90.6%
Chemistry /Chemical 88.9%
Pharmaceutical 84.2%
Biotech 83.3%
Consumer Goods 81.0%
Transportation 76.4%
Computers/Electronics 63.0%
Software 50.0%
Medical Devices 46.2%

from The Unintended Consequences of the Injunction Law after eBay v. MercExchange: An Empirical Study of the Effects on Injunctions in Patent Law
99 J. Pat. & Trademark Off. Soc'y 249 (2017)

One recalls in 2006 LBE wrote an article titled "Will there be Unintended Consequences from the Supreme Court Decision in eBay v. MercExchange?"

In 27 Rev. Litig. 1 (2007), Douglas Laycock wrote:

in eBay Inc. v. MercExchange, L.L.C., n6 where the Court substantially rearranged the standards for granting permanent injunctions without appearing to realize it had changed anything. Recognizing that there can be sound reasons for limiting or refusing injunctive relief, Professor Rendleman would treat those reasons as in the nature of affirmative defenses to plaintiff's prima facie entitlement to an injunction ordering defendant to obey the law. My own view is that his proposal states what the law has been in practice for a long time, n7 and that the Court's opinion has now moved formal doctrine further from reality than it was before. Litigators and trial judges would be much better off if the eBay opinion could have been assigned to Professor Rendleman.

In Modern American Remedies: Cases and Materials at 426 (4th ed. 2010) Douglas Laycock argued that there was "no traditional four-part test" and that the Supreme Court majority's citations supporting this test are misplaced in cases related to preliminary injunctions.

One notes also the text in 27 Rev. Litig. 161 (2008) :

in a very different context, the Supreme Court's decision in eBay Inc. v. MercExchange, L.L.C. n13 is a spectacular example of the confusion that can result from litigating a remedies issue without a remedies specialist. But the reality is that except for consulting opportunities for law professors, the practice of law does not support remedies specialists. It is only teachers and students who have the freedom to consider remedies apart from underlying questions about liability, and thus only law professors who can specialize in remedies.


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