Justice Kennedy’s concurring opinion in eBay included a number of striking comments including the following:
The potential vagueness and suspect validity of some of these patents may affect the calculus under the four-factor test.
If I understand them, the four justices are telling lower courts to reevaluate a patent’s validity and enforceability at the injunction stage — even after those issues have been decided in the patentee’s favor. If you remember, the question of an injunction only arises after the patent has been found valid, enforceable, and infringed.
Perhaps there are parallels between Kennedy’s position and the sentencing of a convicted criminal. At the sentencing stage, the sitting judge has a rather free hand to consider the evidence at hand in mitigating the prison time — even if the jury made opposite conclusions. Here, even if the jury found that the patent was valid and infringed, Kennedy would allow the court to deny an injunction based on the patent’s “suspect validity.”
Of course this approach is wrong, but if you are a cautious patent attorney the solution is simply to not write vague or questionable patent applications.