As reported by ZDNET on Wednesday, July 27, “e-Bay Seeks Patent Ruling From Supreme Court,” eBay petitioned the U.S. Supreme Court to hear an appeal on whether eBay and other companies held liable for patent infringement should be routinely subjected to injunctions while cases are on appeal.
"This case presents an important question of federal patent law with significant implications for the nation's economy," eBay wrote in its Monday request to the Supreme Court. "A permanent injunction in the context of patent law is a potent remedy. The enjoined defendant is faced with tough choices: redesign its product or the product's functionality to eliminate reliance on the patent, negotiate a license on possibly onerous terms, or cease production or use altogether."
According to Paul Festa of ZDNET, the U.S. Congress is currently drafting patent reform legislation including the issue of patent infringement injunctions and this petition pits the computer technology industry against the pharmaceuticals industry. Festa writes “Computer technology companies like eBay, which have to contend with the possibility that they might be infringing myriad patents in the course of their business, want Congress to clarify existing rules they say give district court judges discretion in deciding whether to issue injunctions while patent cases wend their way through the appeals process. The pharmaceuticals industry, by contrast, wants the legislation to reflect recent federal circuit court decisions--particularly the one eBay is appealing--which say injunctions against patent infringers should be standard during appeal except in extraordinary circumstances. Pharmaceuticals and biotech companies tend to face fewer patents in the course of developing a particular product.”
"The hardware and software industries have been at loggerheads with the pharmaceutical industry over including a provision in draft patent reform legislation that would limit injunctive relief," said Joshua Sarnoff, assistant director of the Glushko-Samuelson Intellectual Property Law Clinic at American University's Washington College of Law.
"If the Supreme Court grants certiorari to review the case, it is likely to reverse the Federal Circuit's interpretation and reassert that district courts may refuse to issue injunctions based on general equitable considerations. This would flip the legislative calculus, as the pharmaceutical industry would then seek to reverse the Supreme Court's decision by codifying a requirement to issue injunctions in all but exceptional circumstances," Sarnoff said.