Document Type



10 Tulane J. Tech. & Intell. Prop. 165 (2007)


Almost a century ago the United States Supreme Court held that a patent owner is generally entitled to permanent injunctive relief to prevent ongoing infringement. Lower courts, such as the United States Court of Appeals for the Federal Circuit, consistently applied this rule. Nevertheless, in eBay, Inc. v. MercExchange, L.L.C., the Court overruled this general rule. Justice Thomas, writing for a unanimous Court, unequivocally repudiated almost a century of precedent in a cursory opinion devoid of any explanation or justification for its action. Precedent – a fundamental tenet of our judicial system that facilitates predictable judicial decisions – is undermined by the eBay decision. Chief Justice Roberts, in a concurring opinion, recognized the importance of precedent but failed to explain why he supported rejecting precedent in this dispute. Justice Kennedy, in a second concurring opinion, likewise recognized the importance of precedent. However, he suggested three somewhat dubious reasons for rejecting precedent in this case.

Date of Authorship for this Version

January 2008