Professor Crouch at Patently-O discusses the Federal Circuit’s recent reversal of a denial of a preliminary injunction in Revision Military, Inc. v. Balboa Manufacturing Co. The Professor takes aim at Federal Circuit Judge Newman for failing to cite eBay v. MercExchange, 547 U.S. 388 (2006) anywhere in the opinion:
While the appellate court does a fine job of criticizing the district court judgment, one interesting optical mote in Judge Newman’s written opinion is that it fails to mention the leading Supreme Court case on injunctive relief, eBay v. MercExchange. That case is important here. A major element of eBay is the Supreme Court’s suggestion that the law of injunctive relief in patent cases should be the same law that is applied in other areas of law.
Did Judge Newman make a mistake in failing to cite to or even apply eBay in a preliminary-injunction case? Perhaps, according to the professor. But if so, she’s in good company with another judge: Chief Justice Roberts. The Chief Justice authored Winter v. Natural Resources Defense Council, Inc., 129 S. Ct. 365 (2008), which involved an appeal from the grant of a preliminary injunction, like Revision Military.
Chief Justice Roberts’s majority opinion in Winter neither cites to nor applies eBay, decided just two years earlier. The four justices who concurred or dissented in Winter don’t mention eBay, either. eBay’s directive—that the law of injunctive relief in patent cases should be uniform with other areas of the law—still holds. But the substantive standard for a preliminary injunction comes from Winter (2008), not from eBay (2006). Judge Newman applies Winter in Revision Military.