Presumption of Irreparable Harm

ScreenShot031Christiana Inds. v. Empire Electronics, 2006 U.S. Dist. LEXIS 54210 (E.D.Mich. 2006).

One of the first questions likely to be decided post-eBay is whether infringement of a patent provides any presumption of irreparable harm when judging the equitable factors associated with a permanent injunction. In z4 Tech, a Texas district court could find no support for “the application of a rebuttable presumption of irreparable harm with regard to a permanent injunction.”  In Christiana, however, the district court found that such a presumption continues to exist — at least for preliminary injunctions:

Defendant asserts that in Ebay, the Supreme Court eliminated the presumption of irreparable harm for preliminary injunctions upon a showing of validity and infringement. Plaintiff argues, and this Court agrees, that Ebay did not invalidate the presumption

Christiana (Denying motion for reconsideration of order granting preliminary injunction.)

In the recent case of Abbott v. Andrx, the CAFC took a step towards answering that question — loosely (with a double-negative) implying that a presumption of irreparable harm in a preliminary injunction may be established by showing a likelihood of success on the merits.

[W]e conclude that Abbott has not established a likelihood of success on the merits. As a result, Abbott is no longer entitled to a presumption of irreparable harm.

Abbott v. Andrx. Earlier cases have applied the presumption to permanent injunctive relief as well.  For instance, in the 2004 case of Arthrocare v. Smith & Nephew, the Delaware district court held that “[a]s the patentee, Arthrocare presumptively has suffered irreparable harm throughout the duration of Smith & Nephew’s infringing activities.” Even the District Court in eBay v. MercExchange found that a presumption of irreparable harm flowed to the patentee, although in that case, the court found the presumption to be rebutted.