Constructed and Enhanced Equities Under eBay: Whose Right is it Anyway?

This article treats the injunction issuance standards announced in eBay Inc. v. MercExchange, LLC, as the starting point for patent enforcement planning by sophisticated clients and their patent and corporate attorneys. The eBay standards imply a set of circumstances in which a patent holder will be well-positioned to obtain a patent enforcement injunction, circumstances that patent holders may be able to reach through well-crafted strategic moves. This article explores the actions that a pure licensee patent holder can take to improve its position and establish "constructed equities" that will enhance its chances of obtaining a patent enforcement injunction.