Injunctive Relief In Light Of Bosch v. Pylon — Federal Circuit Finesses The Presumption Of Irreparable Harm

The AIA’s New Joinder Requirements: Cause And Possible Effects

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In a recent appeal from a Delaware district court order denying a post-trial motion for entry of a permanent injunction, the United States Court of Appeals for the Federal Circuit definitively confirmed that there is no presumption of irreparable harm based solely on a finding of patent infringement when determining the appropriateness of injunctive relief. At the same time, the court advanced a property rights approach and found, on scrutiny of the evidence in the particular case, that irreparable harm had been established.

The court sided with the plaintiff/appellant and reversed and remanded with instructions to enter an appropriate injunction, stating that the district court abused its discretion when it denied a permanent injunction. The court held that the Supreme Court, in eBay v. MercExchange, had jettisoned the presumption of irreparable harm as it applies to determining the appropriateness of injunctive relief. Although the court unequivocally confirmed that it would not apply the traditional presumption, it also advanced an approach that may not have much practical difference in cases involving competitors: that of recognizing the “fundamental nature of patents as property rights granting the owner the right to exclude”. However, what role this approach could play in the future remains unclear.

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A recently-enacted patent law may end the forum-shopping era for patent cases. Until recently, it was common practice for non-practicing entities (or “NPEs”) to sue a bundle of unrelated defendants in one, perceived patent-favorable forum. Often, the only connection tying the defendants together was their alleged infringement of the same patent. A provision in the recently-enacted America Invents Act (“AIA”) seeks to eliminate this practice by precluding joining unrelated defendants on the sole basis that they infringe the same patent. This legislation will likely have several effects on patent suits, including reducing the number of defendants in the typical patent suit, increasing the reliance on multi-district litigation (“MDL”) for patent cases, and concentrating multi-defendant megasuits in venues with wide-ranging jurisdiction (such as the International Trade Commission and the United States District Court for the District of Delaware). However, recent filings in the Eastern District of Texas indicate that the plaintiff’s bar has not yet conceded its choice of venue.

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