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A patent entitles its owner to exclude others from making, using, offering for sale, selling, or importing a patented invention.  A permanent injunction is perhaps a patent owner’s most powerful tool to enforce the right to exclude.  For almost a century, patent owners relied on a presumption that they were entitled to a permanent injunction upon a finding of validity and infringement of a patent.  The Supreme Court, however, recently rejected the so-called “general rule” in favor of permanent injunctions in eBay Inc. v. MercExchange, LLC.

In the post-eBay era, patentees and accused infringers face a new issue in the already complex arena of patent litigation.  Specifically, courts may now more often deny a patentee’s request for a permanent injunction, despite finding the patent to be valid and infringed.  After eBay, accused infringers may try to persuade the courts to exercise discretion to impose a compulsory license rather license that allows an infringer to continue practicing the patented invention upon payment of a royalty to the patentee.  The courts, however, have not yet identified the factors to consider when determining whether to deny an injunction and grant a compulsory license. . . .