In Bloomberg Law, IP Litigator Addresses Justice Kennedy’s Patent Law Decisions

In The News
June 28, 2018

In a June 27 Bloomberg Law article, IP litigation counsel Matthew Rizzolo (Washington, D.C.) explains that retiring U.S. Supreme Court Justice Anthony Kennedy often rejected rigid categorical rules in patent law during his 30-year tenure at the Court.

Mr. Rizzolo notes that Justice Kennedy emphasized flexible tests in several opinions that he wrote, including his concurrence in the 2006 eBay v. MercExchange case relating to the availability of injunctions. That case made it harder for patent owners to block infringers even after winning an infringement lawsuit by requiring courts to apply a four-part equitable test to determine whether to grant an injunction. Justice Kennedy’s widely-cited concurrence identified certain example situations where injunctions may be inappropriate, and noted that courts’ equitable discretion over injunctions “is well suited to allow courts to adapt to the rapid technological and legal developments in the patent system.”