Assessing Damages When An Injunction Is Denied

Law360, New York (March 28, 2008, 12:00 AM EDT) -- The Supreme Court’s decision in eBay changed the landscape by eliminating the “general rule” that “a permanent injunction will issue once infringement and validity have been adjudged.” eBay Inc. v. MercExchange LLC, 547 U.S. 388, 294-395 (2006).

But it also raised a new question for which it provided no real guidance: what should a court do when – as many courts applying eBay have done – it declines to grant a permanent injunction? Does the court have authority to set a royalty rate for the defendant’s...
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