Will Winter v. NRDC Hasten The End Of The “Substantial Question Of Patentability” Defense To Preliminary Injunctions?
December 5, 2008 Dabney J. Carr, IV Robert A. Angle What do two recent 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 limit or end the “substantial question of patentability” defense to a motion for preliminary injunction. Ever since eBay, Inc. v. MercExchange L.L.C overturned long-standing Federal Circuit precedent regarding a patentee’s right to a permanent injunction after a finding of infringement and no invalidity, there has been uncertainty about the availability of both preliminary and permanent injunctive relief in patent cases. Some of this uncertainty may have been resolved by two recent Supreme Court decisions that have nothing to do with patents. In a decision in early November, Winter v. Natural Resources Defense Council, the Court overturned a preliminary injunction which had barred the Navy’s use of sonar during training because of the dan
