Patent Injunctions on Appeal: An Empirical Study of the Federal Circuit\u27s Application of \u3cem\u3eeBay\u3c/em\u3e

More than ten years after the United States Supreme Court’s landmark decision in eBay v. MercExchange, the availability of injunctive relief in patent cases remains hotly contested. For example, in a recent decision in the long-running litigation between Apple and Samsung, members of the United States Court of Appeals for the Federal Circuit divided sharply on whether an injunction was warranted to prevent Samsung from continuing to infringe several smartphone features patented by Apple. To date, however, nearly all empirical scholarship regarding eBay has focused on trial court decisions, rather than the Federal Circuit. This Article represents the first comprehensive empirical study of permanent injunction decisions by the Federal Circuit following eBay. Through an original dataset on appeals from almost 200 patent cases, we assess the impact of the Federal Circuit on the availability of permanent injunctions. The findings from this study indicate the Federal Circuit is generally more favorable to prevailing patentees regarding injunctive relief than the district courts following eBay. District courts that grant an injunction after a finding of liability are highly likely to be affirmed on appeal, whereas district courts that deny an injunction have a statistically significant lower affirmance rate. This suggests the Federal Circuit is generally inclined toward a property rule rather than a liability rule as a remedy against future patent infringement. It also appears to lend support to claims by scholars and others that the Federal Circuit, as a specialized court with a large number of patent cases, is more pro-patentee than the generalist district courts. Finally, the implications of this and other empirical findings from the study are considered