What Happened
Before 2006, if you proved your patent was valid and infringed, you almost automatically got an injunction stopping the infringer. Then the Supreme Court decided eBay v. MercExchange and changed everything. Now patent owners have to prove four things, just like any other plaintiff seeking an injunction.
Why It Matters
The four factors are: (1) irreparable harm that money can't fix, (2) inadequate legal remedies, (3) balance of hardships favors the patent owner, and (4) public interest isn't harmed. For operating companies that compete directly with infringers, injunctions are still common—about 80-85% success rate. For non-practicing entities that just license patents, it's much harder—maybe 25-35%.
The key is usually the first factor: irreparable harm. If you're losing market share, customers, or brand value because of infringement, that's hard to quantify in dollars. A jury can calculate royalties, but they can't give you back customers who switched to your competitor. That's irreparable.
But if you're just licensing the patent and not making products, courts say money damages are adequate. You wanted a royalty; you'll get one. No injunction needed.
What You Should Know
If you're a patent owner considering litigation, think about whether you want an injunction or just money. If you want to stop a competitor, emphasize the competitive harm, lost market share, and long-term damage. If you're primarily after royalties, an injunction might not be worth the effort.
If you're defending, and you're not a direct competitor, argue that money damages are adequate. Offer to pay a running royalty. Highlight any hardship an injunction would cause—employees losing jobs, customers losing access, public safety concerns.
Injunctions are still available, but they're not automatic anymore. You have to earn them.