Since 2006, to get a permanent injunction in a patent case, the patentee has to demonstrate that: 1) it has suffered irreparable harm; 2) remedies at law, such a money damages, are inadequate to remedy the harm; 3) the balance of hardships favor an injunction; and 4) the public interest would not be disserved by an injunction. To show irreparable harm, the patentee has to demonstrate there is a casual nexus between the harm and the patent infringement. Traditionally, courts have required a direct link between the harm and infringement. For example, the patentee would have to show that its lost sales were predominantly or solely due to the infringer's use of the patented technology. In Apple v. Samsung, Case No. 2014-1802 (Fed. Cir. 2015), the Federal Circuit, however, used a more flexible approach to find that there was a casual nexus between infringement and harm. Apple asserted that Samsung's smart phones, which have thousands of features, were infringing its patents. The Federal Circuit recognized that it would be nearly impossible to determine which, if any, of those features were driving demand for the product. Thus, it was an error for the district court to require Apple, the patent holder, to prove that the infringing features, which accounted for only a few of the thousands of features, were the exclusive or predominant reason why consumers bought Samsung's phones. Instead, Apple had to show that the patented features impacted consumers' decisions to purchase the accused devices. In this case, there was evidence that Samsung copied the features-at-issue, consumers criticized certain Samsung phones for lacking the accused features, and consumers found the patented features valuable. The Federal Circuit held that evidence was sufficient to find irreparable harm. Because the other three factors also favored granting an injunction, the Federal Circuit held that the district court should have issued a permanent injunction.
There was a concurring opinion that argued for an even looser standard for finding irreparable harm when the patentee's reputation as an innovator is challenged or when a competitor infringes a patent because it violates the a patentee's right to exclusive use of a patent. This opinion will likely make it easier for a patentee to get an injunction against a competitor. Non-practicing entities and companies asserting patents against non-competitors, will likely still have a difficult time receiving an injunction for any alleged of their patents.