The 'Substantial Question Of Patentability' Defense

Law360, New York (November 17, 2008, 12:00 AM EST) -- What do two recent U.S. Supreme Court decisions on the danger of sonar to whales and the arrest of American civilians in Iraq have to do with patent litigation? Perhaps a lot. In fact, these decisions may foretell the death of the “substantial question of patentability” defense to a motion for preliminary injunction.

Ever since eBay Inc. v. MercExchange L.L.C, 547 U.S. 388 (2006) overturned long-standing Federal Circuit precedent regarding a patentee’s right to a permanent injunction after a finding of infringement, there has been uncertainty...
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