The most striking (and embarrassing) mistake of law in modern patent law history occurred in the case of eBay Inc. v. MercExchange, 347 U.S. 388 (2006). This mistake led to an alarmingly incorrect outcome and a monumental disruption of U.S. innovation policy…. The traditional and longstanding remedy for trespass on a patent property right is a permanent injunction. By making removal of an established infringer/trespasser optional in eBay, the Supreme Court vastly undercut and devalued every patent’s exclusive right. This erroneous outcome is a cataclysmic policy error, but that policy miscarriage is not itself the embarrassing error of law.
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