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Patent Injunctions: Quo Vadis ' What Is the Expectation of a Patentee After eBay?

By Steven Pokotilow and Richard Eskew

Whither goest thou?' Or, in plain English: Where are you going? That is the question that must be asked of the courts in the wake of the Supreme Court's recent decision in eBay, Inc., v. MercExchange, LLC, 126 S. Ct 1837 (2006), in which the Court reversed the long-standing practice in the Court of Appeals for the Federal Circuit (the 'Federal Circuit') of granting permanent injunctions in patent cases absent a persuasive reason for not doing so.

Several questions arise: First, has the Supreme Court crafted a rule that will bring chaos and confusion at the trial court level? Or has the Court shrewdly created an environment where free markets, along with trial judges at the ground level, will achieve greater economic efficiency in dealing with patent disputes? Second, how does one attempt to predict what might happen in any given case? How does the ruling affect post-trial damages and the entry of preliminary injunctions?

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