On July 30, 2024, U.S. Senators Chris Coons (D-Del.) and Tom Cotton (R-Ark.) introduced the Realizing Engineering, Science, and Technology Opportunities by Restoring Exclusive (RESTORE) Patent Rights Act of 2024. The House companion bill was introduced by Representatives Nathaniel Moran (R-Texas) and Madeleine Dean (D-Pa.). The bill is designed to legislate over the 2006 Supreme Court eBay v. MercExchange decision which created a four-factor test to determine whether a permanent injunction should issue in patent infringement cases. The eBay decision dramatically reduced the level at which injunctive relief is sought in patent cases and the rate at which they are granted. Gupta et al., Studying the Impact of Ebay on Injunctive Relief in Patent Cases, University of Illinois College of Law Legal Studies Research Paper No. 17-03 (2016). The eBay decision took aim at the proliferation of non-practicing entities (NPEs) including “patent trolls” in the business of patent litigation. Because they do not produce the patented products or services, NPEs can no longer get injunctive relief. However, this has done little to suppress trolls. Conversely, many say eBay backfired entirely, causing predatory infringement by large companies no longer under threat of injunction, and making it more difficult for researchers and R&D companies to secure early-stage investment. Senator Coons explains that “the right to exclude others from making and using a patented invention is the basic foundation of our patent system…However, having a right to exclude is meaningless when courts do not enforce that right. Under our current system, it is cheaper for large companies to steal patented technologies from our inventors and entrepreneurs than to license those technologies lawfully.” Currently 35 USC §283 states that courts “may grant injunctions..”. Given a final judgment of infringement, the RESTORE Act would create a rebuttable presumption that a permanent injunction should issue.[1] If the Act is passed the patent pendulum will swing back. The Act will strengthen the litigation and/or licensing position of all patent holders, for better and for worse.
[1] adding paragraph (b) “If...the court enters a final judgment finding infringement of a right secured by patent, the patent owner shall be entitled to a rebuttable presumption that the court should grant a permanent injunction with respect to that infringing conduct".
