The traditional burdens for final injunctions in patent cases c.1789 and some modern implications

Sean Bottomley, Tomas Gómez-Arostegui*

*Corresponding author for this work

Research output: Contribution to journalArticlepeer-review


This Article reassesses the first two eBay factors for final injunctions— irreparable injury and the inadequacy of legal remedies—in light of traditional equitable principles. Tracking most closely with tradition would require the Federal Circuit to recognize that in patent cases: (1) an injury it seeks to redress with a final injunction is future infringement itself, not merely followon harms caused by future infringement; (2) it can presume future infringement from past infringement; (3) it can presume that legal remedies are inadequate to remedy future infringement; and (4) it need not require a plaintiff to show that alternative equitable remedies, like ongoing royalties, would inadequately redress future infringement. Moreover, the Federal Circuit can recognize, without relying on any presumptions, that the burden on the first two eBay factors is not onerous. A patentee can satisfy them by showing that a defendant is likely to infringe again and that any legal damages awarded at trial did not fully compensate the patentee for the life of the patent.
Original languageEnglish
Article number4
Pages (from-to)403-444
Number of pages42
JournalCase Western Law Review
Issue number2
Publication statusPublished - 2020


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