Recent developments in patent litigation may impact the 20-year-long trajectory of denying injunctive relief for infringement. Attorneys for the U.S. Patent and Trademark Office (USPTO) and U.S. Department of Justice (DOJ) have weighed in on multiple cases to encourage courts to grant injunctive relief for infringement, including for research entities and standard essential patents.
In 2006, the Supreme Court's decision in eBay Inc. v. MercExchange L.L.C. materially altered the landscape of remedies available for patent infringement. Before eBay, the Federal Circuit applied a presumption that injunctive relief was appropriate if a patent was found valid and infringed. Permanent injunctions were granted in over 90% of cases. In eBay, the Supreme Court held that an injunction should not be presumptively available as a remedy for infringement; instead, patentholders must satisfy the traditional test for injunctive relief, including showing irreparable harm.
Studies have found that, following eBay, U.S. courts are significantly less likely to grant either preliminary or permanent injunctive relief as a remedy for patent infringement. One study has shown that since 2006, grants of permanent injunctions to nonpracticing plaintiffs have decreased 91.2% and to operating companies 66.7%. In absolute numbers, that study showed that permanent injunctive relief was granted in less than 0.5% of filed patent cases decided between 2007 and 2023.
U.S. Support for Injunctions in Patent Cases
Despite that trajectory, in the past year, the DOJ and U.S. Patent and Trademark Office (USPTO) have filed two briefs in ongoing district court litigation and one brief in the U.S. International Trade Commission (ITC) arguing that injunctive and exclusionary relief should be available remedies for patent infringement.
- Radian Memory Systems LLC v. Samsung Electronics Co. Ltd., No. 2:24-cv-01073 (E.D. Tex. 2025). Radian filed a motion for a preliminary injunction seeking to enjoin the defendants from making, using, selling, offering to sell, and importing solid-state drives (SSDs) with any of the “commands, responses, capabilities, or functionalities” disclosed in the NVMe Zoned Namespaces Command Set Specification, a part of the NVM Express 2.0 open standard. The USPTO and DOJ filed a joint statement of interest arguing that irreparable harm from infringement is likely because patents are unique assets and calculating reasonable royalties is “very difficult,” as shown by the “large number of reversals” of patent damages verdicts. The government noted that maintaining the availability of injunctive relief is necessary to uphold the value of U.S. patents. The government argued that the “possibility of an injunction … helps prevent potential licensees from viewing infringement as economically efficient,” which erodes “the patent’s value and the patentee’s control over it.” The government warned that if patentholders could not show irreparable harm if they had previously quantified the value of the invention in one or more licenses, then courts would become the overseers of a compulsory licensing regime where any implementer could choose to infringe and simply pay the court-determined royalty rate.
- In re Certain Dynamic Random Access Memory (DRAM) Devices, Products Containing the Same, and Components Thereof, Inv. No. 337-TA-1472 (ITC 2025). Netlist filed a complaint in the ITC requesting an investigation into the alleged infringement of five DRAM-related patents. One respondent argued that because the DRAM patents were purportedly essential to a technical standard (also known as standard essential patents, or SEPs), they were encumbered by a commitment to license those patents on fair, reasonable, and nondiscriminatory (F/RAND) terms, so exclusionary relief would be inherently against the public interest. The USPTO and DOJ, in turn, filed a public interest statement arguing that the ITC’s exclusionary remedy should be available for proven patent infringement except in “truly extraordinary circumstances related to public health or safety.” The government cautioned that respondents in recent ITC investigations have “weaponize[d]” the ITC’s inquiry into the public interest as a “procedural obstacle[] to meritorious complaints” of infringement. The government argued that the ITC, in most cases, should instead investigate the public interest only after infringement is proven.
- Collision Communications Inc. v. Samsung Electronics Co. Ltd., No. 2:23-cv-00587 (E.D. Tex. 2026). In October 2025, a jury awarded Collision more than $445 million in damages after finding Samsung infringed four of its patents. In December 2025, Collision filed a motion for a permanent injunction seeking to enjoin the defendants from making, using, selling, offering to sell, and importing phone and tablet products found to infringe one of the patents-in-suit. In that case, the USPTO and DOJ filed a joint statement of interest arguing that “ongoing patent infringement” may justify an injunction because of the “inadequacy of a monetary remedy, which can be difficult to calculate accurately” regardless of whether the plaintiff practices the patent or not. The government brief encourages the courts to permit injunctive relief “to prevent an ongoing violation of rights in a unique asset even where a non-practicing entity owns that asset.”
Impact of the Government’s Statements
While none of the cases in which the government has filed a statement of interest has yet to order an injunction, private litigants have cited to the statements in support of their own requests for injunctive relief.
In Collision Communications, the plaintiff cited the USPTO and DOJ’s Radian statement of interest in its motion for a permanent injunction, arguing that, without injunctive relief, patentholders would be forced to engage in “perpetual litigation” to secure damages.
More recently, in Wilus Institute of Standards & Technology Inc. v. HP Inc., No. 2:24-cv-00752 (E.D. Tex.), the plaintiff, a Korean R&D lab, filed a motion for a permanent injunction against defendants Askey Computer Corp. and Askey International Corp., based on the defendants’ stipulation of infringement of certain SEPs for the IEEE 802.11ax (“Wi-Fi 6”) standard. Citing the Radian statement of interest, Wilus argued that damages were insufficient for at least three reasons. First, the defendants’ alleged delay in taking a license (also known as “holdout”) “interfere[d]” with the lab’s “pursuit of its research and development projects, which in turn translates to forgone opportunities for Wilus to invent and contribute to enhancing the consumer welfare.” Second, the defendants’ alleged holdout “impugn[ed] Wilus’ reputation as a leading research laboratory and force[d] it to divert significant resources away from its R&D efforts” and participation in standards development into litigation. Finally, the defendants’ willingness to infringe the lab’s patents instead of licensing them “sends a message to the market that others” can hold out too. The lab explained that once litigation begins, “other potential licensees typically refuse to take a license until the litigation is resolved,” effectively freezing its ongoing licensing efforts. Quoting the USPTO and DOJ’s Radian statement of interest, Wilus argued that only an injunction could deter other potential licensees “from viewing infringement as economically efficient.”
While there will certainly be further follow-on requests for injunctive relief worthy of analysis, we highlight two initial takeaways from these recent developments:
Return to the “New Madison” approach
The USPTO and DOJ’s recent written statements, as well as other statements by Trump Administration representatives such as a recent speech by Deputy Assistant Attorney General Dina Kallay, reflect a return to the "New Madison" approach first articulated by the head of the DOJ's Antitrust Division during the first Trump Administration. A core tenet of that approach is the protection of a patentholder’s—including an SEP holder’s—right to seek and obtain injunctive relief for infringement. In 2019, the DOJ released a “Policy Statement on Remedies for Standards-Essential Patents Subject to Voluntary F/RAND Commitments” opining that all remedies—including "injunctive relief" and "exclusion orders issued by the" ITC—should be "equally available" in litigation involving SEPs. That policy statement was withdrawn in June 2022 and was never replaced.
While the second Trump Administration has not reissued the 2019 policy statement, the USPTO and DOJ’s recent statements suggest continuity with the first Trump Administration’s views. The current administration has also emphasized the importance of technical standards for U.S. national security, which likewise suggests the administration will continue vocalizing support for patentholders that participate in standards development or that own SEPs.
Legislative support may also exist to reestablish the availability of injunctive relief for patent infringement. Last year, two Senators reintroduced the Realizing Engineering, Science, and Technology Opportunities by Restoring Exclusive (RESTORE) Patent Rights Act, which is a one-sentence bill that would establish “a rebuttable presumption” in favor of permanent injunctive relief when the court had entered “a final judgment finding infringement” of a valid U.S. patent.
Regardless of whether additional executive or legislative action is on the horizon, defendants in ongoing and future U.S. patent litigation should be aware of the USPTO and DOJ’s renewed support for equitable remedies that may impact defendants’ operations in the United States.
Revived role of U.S. courts in global SEP disputes
Some commentators believe that the post-eBay decline in the availability of injunctive relief relegated the United States to a “secondary role” in global disputes involving F/RAND-committed SEPs. Indeed, following eBay, no SEP owner has ever secured an injunction against SEP infringement in a U.S. court.
As we have discussed before, global disputes are emerging between the United Kingdom, Europe, and elsewhere about how to resolve litigation between SEP holders and implementers that practice the standardized technology covered by those SEPs. While there has been an increase in U.S. SEP litigation in the past decade, “uncertainty around SEP enforcement” remains given the “lack of definitive policy guidance and evolving case law.” To the extent U.S. courts take up the USPTO and DOJ’s call to more freely grant injunctions against patent infringement, including for SEPs, the U.S. courts could become a more popular venue in global SEP disputes. This may require U.S. courts to become more involved in developing jurisprudence related to anti-suit injunctions, interim license relief, and extraterritorial F/RAND rate settings.
Alston & Bird will continue monitoring domestic policy developments, as well as further requests by private litigants for injunctive relief in U.S. courts, that may shape the role of U.S. courts in global SEP disputes.
If you have any questions, or would like additional information, please contact one of the attorneys on our Intellectual Property Litigation team or one of the attorneys on our Antitrust team.
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