IP risk assessment often includes a review of whether a company risks liability — or even worse, a permanent injunction — based on infringement of a third party patent. In the 2006 eBay, Inc. v. MercExchange LLC case, the U.S. Supreme Court effectively reduced the risk of a permanent injunction in patent cases by stating that a permanent injunction is not an automatic remedy. Instead, the inquiry is fact-specific, and in the context of IP due diligence it may be difficult to assess the risk unless certain facts about the patent holder are known.
My colleagues Mike Renaud and Matt Kaplan at Pepper Hamilton recently published an analysis of the eBay case after CSIRO v. Buffalo Tech, Inc., a recent ruling from the Eastern District of Texas which highlights the fact that no “bright line” rule exists for determining when a permanent injunction is warranted. To read the full article at the Pepper Hamilton website, click here.