William Patry has a great new post questioning the validity of the presumption of irreparable harm in the copyright preliminary injunction context. And, as he notes, we have the same presumption in the patent law preliminary injunction context. Patry is especially strong, and informative, on the general theory of presumptions as evidence-forcing (but not full burden-shifting) devices.

William McGeveran follows up at Info/Law with his own great post, this one exploring the consequences of eBay for the continued vitality of the presumption in patent cases.

My own sense is that the presumption of irreparable harm in patent infringement preliminary injunction cases can no longer be (if it ever was) anything more than a (weak) “bursting bubble” presumption that drops out of the case the moment the non-movant introduces any evidence suggesting the lack of irreparable harm. I thought so the moment I read the Supreme Court’s decision in eBay: Here’s the first paragraph of my first substantive post on eBay the morning of the decision (May 15):

Top line thought: The presumption of irreparable harm, long a mainstay of the Federal Circuit’s preliminary injunction jurisprudence, is now highly questionable. Expect it to come under sustained attack in the lower courts.

There’s also an excellent argument that the presumption shouldn’t exist at all, even as an evidentiary device. After all, why would we think that the non-movant has better evidence on irreparable harm than the movant-patentee, or that the non-movant would hold back on that evidence unless forced to bring it forward by a burden-of-coming-forward-style presumption? All the presumption seems to do now is help whip a wavering trial judge up into the movant’s “my patent gives me the absolute right to exclude” nonsense. Better simply to dump it.