Reports of Its Death Are Greatly Exaggerated: eBay, Bosch, and the Presumption of Irreparable Harm in Hatch-Waxman Litigation

Authors

Kenneth C. Louis, Rutgers School of Law, Newark

Abstract

This Article examines the preliminary injunction standard in pharmaceutical patent infringement actions pursuant to the Hatch-Waxman Act. Prior to Supreme Court’s decision in eBay v. MercExchange, L.L.C. in 2006, federal courts applied a presumption of irreparable harm when a patent holder established a likelihood of success on the merits. While the eBay Court abrogated the presumption of irreparable harm in permanent injunctions, courts have been unclear as to application of eBay on preliminary in-junctions. This Article will further examine preliminary injunctions in Hatch-Waxman actions in the District of New Jersey since eBay in 2006 and argue that courts still tacitly apply the irreparable harm presumption.

Recommended Citation

Kenneth C. Louis, Reports of Its Death Are Greatly Exaggerated: eBay, Bosch, and the Presumption of Irreparable Harm in Hatch-Waxman Litigation, 4 Pace. Intell. Prop. Sports & Ent. L.F. 33 (2014).
DOI: https://doi.org/10.58948/2329-9894.1025
Available at: https://digitalcommons.pace.edu/pipself/vol4/iss1/3