Much Ado About Nothing: The Biotech & Pharmaceutical Industries Have Little to Fear in the Post-eBay World

2007 Journal on Telecommunications & High Technology Law

Prior to the U.S. Supreme Court's decision in eBay Inc. v. MercExchange, L.L.C., an injunction was a matter of course as a remedy after a court had determined infringement had in fact occurred. The Federal Circuit, with rare exception, reversed any attempt to impose a compulsory license as a substitute for an injunction. Its near-automatic injunction rule, although premised on the discretion that a trial court had in determining remedies under the Patent Act, had for all practical purposes, read a “shall” in place of the “may” in Section 283 of the United States Code. The Supreme Court, however, pushed back, and in a unanimous decision, reversed almost three decades of Federal Circuit precedent by mandating an express consideration of the equitable factors that are commensurate with the permanent injunction analysis.

In this casenote, Michael argues that the Supreme Court decision will not substantively change the result of the equitable test for injunctive relief as it specifically applies to the biotechnology and pharmaceutical industries.