For the second time in less than a year, the USPTO, along with the DOJ's Antitrust Division, has stepped into a patent case pending in the Eastern District of Texas. Once again, the intervention is before Judge Gilstrap in Marshall, the epicenter of U.S. patent litigation. And once again, the government is weighing in on how courts should evaluate irreparable harm and injunctive relief in a case brought by a non‑practicing entity (NPE).
The first intervention came in Radian v. Samsung. There, an NPE sought a preliminary injunction, which is a form of relief that NPEs have historically struggled to obtain. In its Statement of Interest, the USPTO and Antitrust Division urged the court to reject the assumption that licensing entities necessarily suffer only compensable, monetary harm. Instead, the government argued that infringement can irreparably harm an NPE by undermining its ability to control licensing terms, market positioning, and strategic relationships, particularly where valuation is uncertain and speculative.
That case, however, never produced a ruling. The motion for a preliminary injunction was ultimately withdrawn, leaving unresolved whether the government's views would have moved the needle.
Now the government is back, once again in a case brought by an NPE.
In Collision v. Samsung, the procedural posture is markedly different. The case has already gone to trial. A jury has found infringement and awarded substantial damages. The dispute now centers on whether to grant a permanent injunction, which is a remedy that has been especially difficult for NPEs to secure in the wake of the Supreme Court's decision in eBay v. MercExchange.
As in Radian, the USPTO and Antitrust Division's Statement of Interest emphasizes that patents are property rights that confer the right to exclude, and that irreparable harm is not limited to injuries that can be easily reduced to dollars and cents. But in Collision, those arguments are presented in a post‑verdict context, where infringement is no longer hypothetical and damages in the form of a running royalty have already been awarded.
The government argues that even under these circumstances, ongoing infringement can still inflict irreparable harm, including for NPEs. Patents, it contends, are unique assets, and setting a forward‑looking royalty for continued infringement requires courts to speculate about future markets, technologies, competitors, and economic conditions. According to the government, that uncertainty supports a finding that legal remedies may be inadequate, notwithstanding a substantial damages award for past infringement.
By intervening again in a case involving an NPE, the USPTO and Antitrust Division are challenging the long‑standing assumption that injunctions are effectively off‑limits to NPEs. And by doing so in the context of a permanent injunction, they have squarely presented the question that Radian never reached: whether courts should rethink how irreparable harm is assessed when an NPE has proven infringement and damages have already fallen short of stopping it.
Unlike Radian, Collision is unlikely to end quietly. Whatever Judge Gilstrap decides will come on a fully developed factual record, with the government's views clearly before the court. This time, we may finally see whether the administration's push to reopen the injunction door for NPEs has any traction.
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