Here are a handful of unanswered questions that leave us a bit in limbo post-ebay.
- What (if any) presumption of irreparable harm is associated with an infringed patent? (in z4 no presumption was found)
- How should willfulness of the infringement factor into the injunction analysis? If it “should” be factored-in, which of the four factors would it fall under? (In z4, willfulness was not considered a factor).
- The Supreme Court ruled that a plaintiff’s willingness to license its patents and its lack of commercial activity in practicing the patents could not be sufficient to establish that the patent holder would not suffer irreparable harm if an injunction did not issue — but to what extent can those weigh in favor of an injunction.
- Those of us having a law & economics background have difficulty with the concept of irreparable harm because the basis of idea that “most patent-related injuries can be fully compensated by some ex post cash payment” (Lichtman). Couple that with Professor Laycock’s ground-breaking worth on the Death of Irreparable Injury where he shows that irreparable injury jurisprudence is for the most part a sham that does not alter the outcome. Bottom line, when will there be irreparable injury? What we do know is that failure to work and a willingness to license do not preclude a finding of irreparable harm.
- How will irreparable for permanent injunction differ from the analysis during a preliminary injunction determination?
- Once an injunction is denied, how will we calculate damages and is ongoing infringement willful?