It has been a year since the U.S. Court of Appeals for the 2d Circuit decided Salinger v. Colting, 607 F.3d 68 (2d Cir. 2010). In Salinger, the 2d Circuit articulated a stricter preliminary injunction standard for copyright infringement cases, replacing the presumption of irreparable harm that copyright owners previously enjoyed with a requirement to satisfy the test set forth by the U.S. Supreme Court in a patent case, eBay Inc. v. MercExchange LLC, 547 U.S. 388 (2006). The holding was in harmony with the 2008 11th Circuit decision in North American Medical Corp. v. Axiom Worldwide, 522 F.3d 1211 (11th Cir. 2008), which extended eBay‘s reach to preliminary injunctions in trademark cases. Since Salinger and Axiom, district courts have inconsistently applied the eBay standard in trademark and copyright cases.
In eBay, MercExchange filed suit against eBay for infringement of MercExchange’s business method patent for an electronic marketplace. A jury found that eBay did infringe MercExchange’s patent, and awarded damages. MercExchange filed a motion for a permanent injunction against eBay, which the court denied. On appeal, the Federal Circuit reversed the lower court’s decision, applying its long-standing rule that, absent extraordinary circumstances, courts will issue permanent injunctions pursuant to a finding of patent infringement. The U.S. Supreme Court granted certiorari in 2005. In its opinion, the Supreme Court rejected the Federal Circuit’s application of a categorical rule relating to the grant of permanent injunctions in patent infringement cases.
