The Impact of eBay on Injunctive Relief in Patent Cases.


The chart above comes from the interesting new article from Kirti Gupta and Jay P. Kesan of Qualcomm and Univ of Illinois respectively titled Studying the Impact of eBay on Injunctive Relief in Patent Cases.   You’ll note little measurable difference in the rate at which either permanent or preliminary injunctions are granted pre or post eBay.

The pair explain the result as one of self-selection — i.e., folks with little chance of success post-eBay didn’t even seek injunctive relief.  Supporting that contention, the article reports a significant drop post-eBay in the percentage of cases where injunctive relief was sought.

16 thoughts on “The Impact of eBay on Injunctive Relief in Patent Cases.

  1. 4

    This paper does cite earlier papers of others for alleged NON-self-selection data [data not strongly affected by NPE’s not even trying to get an injunction] on injunctions granted after eBay:
    “In particular, Seaman (2015) analyzes the rate of permanent injunctions for 218 U.S. district court decisions in patent cases after eBay. He finds that while the overall grant average rate of permanent injunctions post eBay was 72.5%, it was only 16% for NPEs. Prior work by Peterson analyzed 33 U.S. district court decisions on a motion for permanent injunctions post eBay as well, for patent cases between May 2006 and February 2008. He found that in 24 (out of the 33) cases, a permanent injunction was granted, and that NPEs were less likely to be granted an injunction. Maughan compares both pre-eBay and post-eBay decisions on permanent injunctions, with a sample of 37 U.S. district court patent case decisions, between May 2003-2005, and 166 cases between May 2006 and January 2011. ”
    If this data is valid it is inconsistent with allegations that eBay killed getting injunctions, at least in in what were presumably traditional patent suits between real product competitors?

  2. 3

    This seems to suggest that attorneys are actually competent at doing their job.

    Doesn’t show any of the harm done by eBay.

  3. 2

    I have an awesome idea for those folks wishing to turn back the clock to the pre-eBay and pre-Prometheus and pre-Alice days: make patent ownership a requirement for obtaining a voter ID!

    This modest requirement will also remove all the lazy copyists from the voter rolls. Those people aren’t real Americans anyway so nobody will care.

    This ought to go down smoothly with members of a certain political party.

    1. 2.1

      I have an assume idea for those folks wishing to turn the clock back and deny protection for innovation of the kind that they don’t like:

      Don’t use that innovation.

      1. 2.1.1

        Then don’t get out of bed, or at least stay off the Internet, because you can’t move through modern life without “using” “innovations” that are patented out the wazoo. Frequently invalidly patented at that.

        Don’t like pollution? Just don’t breathe. I don’t get what the fuss is about.


          Again we just get this propaganda where there is some fantasy world being portrayed.

          Reality: US has patents for software and is the leader in software by a factor of 10.

          Reality: there are few companies that can’t do a clearance with patents and design around the current patents. I’ve done a number of these and it isn’t hard.

          Reality: massive bucks to try to burn it down and so much nonsense.

          Real people that do this work don’t see this dystopia that is described on this blog.

          And, by the way, Martin, you are just the type of person I see get in trouble in the patent world. Arrogant and dismissive of the patent system. A simple clearance and a little education would have most likely saved you. But, you decided our patent system was not worth your time and now you get on here and vent each day about getting your just desserts.


            Night, how about you enlighten yourself to the real world? Please peruse the hundreds of documents in the docket and come back and tell us what you know about my case. Impress for once with some insight based on the actual filings about the validity of the patent(s) and the alleged culpability of my company. I can hardly wait.

            PatentlyO appears a number of times FWIW.

            link to


              You know Martin merely taking the snarky tone of the paid bloggers doesn’t impress. The fact is I know what you have said on here. 1) You ignored the patent system. 2) You invented the feature you were sued for before the priority date of the patent. That is enough to show me that you dug your own grave.


                RPX corp is not a dodgy link- they meticulously maintain the annals of grift- and legitimate litigations too.

                link to

                Seriously, read the papers in our case. Learn something for a change.

                1. Well it is not working for me.

                  Not sure you really want me to look through your case anyway. Especially if you have depositions there. I suspect Martin that you are quite the bad actor. Just a guess. No legal opinion. Not based on any evidence other than what you have said on here.

                  But, Martin, you are really way out there. You epitomize all that is wrong with businesses that get in trouble with the patent system. The start-ups I work with do clearance and figure out how to avoid the problems you are now enmeshed in. They use the patent system to protect themselves from copies and big corp. Respect for the patent system and our laws often results in the company being helped significantly by the patent system at little cost.

                  That is one thing that is missing from all these troll stories. Did the company take any precautions? Or was the company arrogant and flouted our patent laws? The latter is typically the case.

    2. 2.2

      As to the ever inane and bumbling attempt at inserting politics (as if Malcolm has a clue as to my – or any other pseudonymous or anonymous poster’s political choices), Malcolm ever seeks to impose his own Red Queen edicts and mix of his view of politics…

      I was reminded of that when I came across this article (linked to a John Locke biography):

      link to

      Critical thinking, “folks,” will never go out of style.
      It just so happens that critical thinking is also the thing most lacking in my petty antagonists.



          The href attribute wasn’t recorded in your link. Would you mind trying again?

  4. 1

    “The pair explain the result as one of self-selection — i.e., folks with little chance of success post-eBay didn’t even seek injunctive relief. Supporting that contention, the article reports a significant drop post-eBay in the percentage of cases where injunctive relief was sought.”

    See? Equity isn’t even really that hard for people to cipher through and get just about correct.

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