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. . . .