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Trade Secrecy Injunctions, Disclosure Risks, and eBay's Influence
American Business Law Journal  (IF1.533),  Pub Date : 2019-11-21, DOI: 10.1111/ablj.12153
Deepa Varadarajan

Historically, intellectual property (IP) owners could rely on injunctive remedies to prevent continued infringement. The Supreme Court's eBay v. MercExchange decision changed this, however. After eBay, patent courts no longer apply presumptions that push the deliberative scales in favor of injunctions (or “property rule” protection). Instead, patent injunctions require a careful four‐factor analysis, where plaintiffs must demonstrate irreparable injury (i.e., that money damages cannot compensate). Without question, eBay has made it harder for patent plaintiffs to secure injunctions, and has led many district courts to consider innovation policy concerns (e.g., the strategic behavior of patent “troll” plaintiffs) in the injunction calculus. By and large, courts’ more deliberative approach to patent injunctions post‐eBay has been viewed as beneficial for the patent system.