The famous – or infamous, if you’re an N.P.E. – eBay decision has eliminated the automatic injunction formerly awarded to prevailing patentees. Now, the courts are to apply the “4 part test” traditionally applicable to the award of equitable relief. As a practical matter, the trial court must now decide whether the prevailing patentee will suffer any “irreparable harm” if the scum sucking infringer continues to infringe. All well and good – if you’re not an N.P.E. – but which party bears the burden of proving the “irreparable harm”? The Supreme Court was too busy upsetting a century of settled law to address this little detail.
Well, the reader can now take heart – almost. After ducking this question in two previous cases, the C.A.F.C. has now decided that “[t]he burden is now on the patentee to demonstrate that its potential losses cannot be compensated by monetary damages” (“cannot be compensated by monetary damages” is judgespeak for “irreparable harm”). (Automated Merchandising Systems (AMS) v. Crane Co.) We said “almost” because the C.A.F.C. has designated this case as “non-precedential.” Precedential or not, we don’t expect that many trial court judges will hold differently in the future.