eBay Inc. v. MercExchange LLC: The Supreme Court Redraws the Battle Lines

On May 15, the U.S. Supreme Court issued its long-awaited decision in eBay v. MercExchange and rejected a Federal Circuit rule that patent holders are entitled to an essentially automatic, permanent injunction for infringement on a finding of liability.

The Court emphasized that it was taking no position on whether an injunction should eventually issue in this case or others like it. Moreover, two distinctly different concurring opinions demonstrate a fundamental dispute among the justices concerning whether and when such injunctions should issue.

Given the Court's failure to provide stronger direction for federal courts dealing with patent infringement cases, how are the federal courts likely to interpret and apply the ruling? What will be the real impact for businesses and patent holders? Will current Congressional action mean further upheaval?

Listen as our authoritative panel provides a detailed review and analysis of the Court's decision in eBay, its background and history and potential impact going forward.

Scott Kieff (Moderator), Law Professor, Washington University School of Law, is a Research Fellow at Stanford University's Hoover Institution and specializes in patent law and policy. He previously clerked for Judge Rich on the Federal Circuit and practiced as a trial lawyer and patent lawyer for seven years. He consults for and testifies as an expert for law firms, and the US and foreign governments, focusing on ADR and structuring transactions to avoid and resolve disputes. He was appointed to serve on the Federal Circuit's new panel of mediators.

Jennifer A. Albert, Partner, Hunton & Williams, focuses her practice on the litigation of claims relating to patent, trademark and copyright matters, including infringement claims, in federal district and appellate courts and before the International Trade Commission. She served as trial counsel and represented patent-owner MercExchange in MercExchange vs. eBay in the federal district court.

Andrew J. Pincus, Partner, Mayer Brown Rowe & Maw, Washington, DC, specializes in briefing and arguing cases before the Supreme Court, having participated in more than 100 such cases, including successfully arguing Illinois Tool Works Inc. v. Independent Ink. He formerly served as General Counsel for the U.S. Department of Commerce, formulating and implementing policy concerning intellectual property, among other issues.

Justin Nelson, Susman Godfrey, Seattle, counsels clients on matters involving intellectual property, antitrust, and appellate litigation. He and his firm regularly represent patent plaintiffs in suits across the country. He is a former law clerk to Justice Sandra Day O’Connor. He represented a group of inventors and Intellectual Ventures in an amicus brief in eBay v. MercExchange.

Mark L. Whitaker, Partner, Howrey, Washington, DC, devotes his practice to litigation and counseling with the firm's Intellectual Property practice group. He served as counsel on behalf of Research in Motion in its infringement dispute with NTP, among other complex patent infringement cases. He also represents clients in fast-track IP litigation before the International Trade Commission.

They address these and other key questions:

• What kind of guidance did the Court offer for applying the four-prong principles of equity for considering injunctive relief?
• What can patent holders and alleged infringers learn from the differing Roberts and Kennedy concurrences?
• How will the district court likely rule in eBay, based on the facts of the case, the Court's ruling, and the concurrences?

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