Fixing Patent Injunctions and the RESTORE Act

Erick

Welcome to the first episode of the Patent Litigation Podcast, where we talk about the intricate world of patent disputes, providing insight and interesting viewpoints on legal strategies, landmark cases, and industry trends. We and industry experts share practical wisdom on every phase of patent litigation. From pre-filing considerations to post-trial remedies, we deliver valuable perspectives for attorneys, in-house counsel, inventors, and business leaders.

Erick

As always, the views and opinions expressed in this podcast do not necessarily represent those of Brown Rudnick. This podcast is presented for informational and educational purposes only.

Erick

Today, I am here with my friend and patent litigator extraordinaire, law school professor Dr. Angela Liu. Thanks for joining me today, Dr. Liu

Dr. Angela Liu

Please Erick! We are friends -- call me Angela!

Erick

Alright, Angela let’s dive right in. Today, we're talking about the RESTORE Patent Rights Act of 2025. A bill that's, well, in many ways, both straightforward and transformative. It's one of those legislative efforts aimed at fixing what some might call a—ah, shall we say—a critical flaw in our patent system.

Angela

Yeah, and when you say 'critical flaw,' you're talking about how, since 2006, patent owners haven’t been able to rely on getting a permanent injunction when their patents are infringed. Essentially, courts started saying, “Show us why money isn’t good enough.”

Erick

Exactly. And that's a big shift. Look, patents are supposed to give inventors the right to exclude others from using their invention. But if you can’t stop someone—

Angela

—then what’s the point of having a patent, right?

Erick

Right. It’s like saying you own a house, but anyone can live in it as long as they pay you rent after a court battle. That’s where the RESTORE Act comes in.

Angela

Mm-hmm. So, the bill proposes a simple fix. Once a court decides that someone has infringed a valid patent, the patent owner gets a rebuttable presumption of a permanent injunction.

Erick

“Rebuttable presumption” being the key phrase here. It means the default position is, “Yes, the patent owner deserves an injunction.” But if the infringer can prove there’s a compelling reason not to grant one, they can rebut that presumption.

Angela

So, it’s not automatic. Courts still have discretion, but it flips the burden back to the infringer, which is—well, it’s how the system worked for, what, two hundred years before 2006?

Erick

Exactly. And the beauty of the Act is its simplicity. It doesn’t rewrite patent law; it just restores what used to be an assumed remedy when someone infringed your patent.

Angela

And the reasoning behind it is pretty hard to argue with. If someone has been found guilty of infringement after a final judgment, why should they get to keep using the invention unless there's a really good reason?

Erick

Yeah, the Act essentially says, “Let’s make patents meaningful again.” And it cuts down on the “infringe now, pay later” mindset that’s been plaguing the system for years.

Erick

You know, it’s really fascinating how this debate over injunctions isn’t just about modern legislation—it’s deeply tied to the core purpose of patents. I mean, the right to exclude others is what gives the entire system its constitutional backbone.

Angela

Right, it’s the whole point of the patent “bargain.” You disclose your invention to the public, and in return, you get that exclusive right to profit from it. Without that right, it kinda defeats the purpose.

Erick

Exactly. For two centuries, courts treated that right seriously. Once they found infringement, the general response was to stop the infringement. Period.

Angela

Because, back then, they understood that damages just... weren’t enough. I mean, how can you accurately measure the value of someone’s future market share? Or the opportunity cost of an invention being used without permission?

Erick

You can’t. And that’s why injunctions were the go-to remedy. Patent owners could stop unauthorized use and protect the value of their work. But then, in 2006, the Supreme Court decided _eBay v. MercExchange_... and everything changed.

Angela

Right. The Court introduced that four-factor test—a balancing act, they called it. But really, it put the burden of proof squarely on the patent owner to show why money couldn’t solve the problem.

Erick

And suddenly, you’ve got universities, research institutions, startups—people who aren’t manufacturing products, but rely on licensing revenue—essentially getting the short end of the stick. They can’t meet that new threshold as easily as big corporations can.

Angela

Exactly. I actually used _eBay_ as a case study in one of my classes last semester. We had this fascinating debate about whether the decision prioritized efficiency over fairness—or just created a loophole for bad behavior.

Erick

Let me guess—the bad behavior side won?

Angela

Not even close. The class overwhelmingly thought the decision opened the door for what we call “predatory infringement.” Imagine being a small startup with a game-changing invention, only to watch a big corporation copy it and drag you through years of litigation, knowing they’ll just pay a royalty at the end.

Erick

Yeah, it’s blatant. The math favors the infringer. Why negotiate a license upfront when you can infringe, make money, and settle for a fraction of the profits?

Angela

And the data backs it up. Post-_eBay_, requests for permanent injunctions by non-practicing entities like universities and research labs dropped by, what, eighty-five percent?

Erick

Closer to ninety, actually. And for those who manufacture products, the drop was still shocking—around sixty-five percent. It’s clear _eBay_ crippled the very mechanism meant to protect smaller players.

Angela

Not to mention the chilling effect on innovation. If startups can’t enforce their patents, who’s going to invest in them? Venture capitalists see the uncertainty and move their money elsewhere.

Erick

And that’s the irony, isn’t it? Patent law is supposed to promote innovation, but after _eBay_, it’s done the opposite for so many inventors who don’t have the resources to fight back.

Angela

Which circles back to why the historical context is so important. For two centuries, the right to exclude was the norm. Injunctions weren’t questioned, they were expected. They gave inventors the confidence to invest in their ideas.

Erick

And now, with the RESTORE Act, we’re looking at restoring that confidence. But first, we need to understand what it’s proposing, and why it works.

Angela

Building on that, the RESTORE Act aims to address these challenges directly. One of its central proposals is the reinstatement of a rebuttable presumption for permanent injunctions after final judgment. It might sound straightforward on paper, but in practice, it’s a pivotal step toward rebalancing the scales for smaller players.

Erick

Huge deal. This single shift, putting the burden back on infringers to prove why an injunction shouldn’t be granted, completely realigns patent law with what it was intended to do—protect inventors.

Angela

And it really goes back to fairness, right? If the court decides someone infringed on a valid patent, they shouldn’t get to keep using it unless there's a very compelling reason. Otherwise, it undermines the whole notion of exclusivity.

Erick

Exactly. The Act doesn’t eliminate judicial discretion, but it restores a baseline expectation: If you’re infringing, the default remedy isn’t just a monetary penalty—it’s stopping the infringement altogether. Without that, you’re basically encouraging bad behavior.

Angela

Which is exactly what we’ve seen post-_eBay_. That whole “infringe now, settle later” strategy has been rampant. And honestly, for small players like startups or universities, it’s been devastating.

Erick

Right. Take this tech startup I worked with a while back. They’d developed this groundbreaking wireless charging technology—truly game-changing stuff. But a major competitor swooped in, copied their invention, and kept selling it. And when the startup tried to enforce their patent, guess what happened?

Angela

Let me guess. They got tied up in years of litigation while the infringer profited from their work.

Erick

You got it. The big guy knew they couldn’t be immediately stopped because that injunction just wasn’t guaranteed anymore. They dragged out the case, banking on a settlement or small damages down the line.

Angela

And in the meantime, the startup either loses market share or has to settle for peanuts compared to what the tech might really be worth. It’s the exact scenario the RESTORE Act is designed to prevent.

Erick

Right. Because when injunctions are back on the table, it forces infringers to think twice. They have more incentive to negotiate upfront, which is what licensing is supposed to be about in the first place.

Angela

And it’s not just about fairness—it’s about efficiency too. If injunctions are the likely outcome, companies will avoid drawn-out litigation wherever possible. Earlier settlements, lower costs—everyone wins.

Erick

Well, except for those who’ve been gaming the system, of course. But that’s kinda the point. The RESTORE Act levels the playing field, making it harder for big corporations to bully smaller players into submission.

Angela

It also reaffirms the role of patents as property rights. I mean, you wouldn’t let someone trespass on your land indefinitely just because they paid damages afterward, would you?

Erick

Exactly. By reinstating injunctions as the default remedy, the Act goes a long way toward restoring the integrity of the system. It’s simple, it’s logical, and it’s long overdue.

Erick

Exactly—and that brings us to the bigger picture. Injunctions aren’t just about fairness in individual cases; they’re rooted in the very principles outlined in the Constitution. So, let’s dive into why they’re so critical to justice in the patent world.

Angela

Exactly. The Constitution explicitly grants inventors the “exclusive right” to their discoveries. And that exclusivity isn’t just symbolic—it’s a functional mechanism to foster innovation.

Erick

Right. If courts can’t stop ongoing infringement, it’s like saying, “Sure, you can own your invention, but you don’t really get to control it.” It’s the equivalent of turning patents into compulsory licenses.

Angela

Which isn’t just frustrating for inventors—it’s also potentially unconstitutional. Some scholars even argue that systematically denying injunctions could violate the Fifth Amendment’s Takings Clause.

Erick

That’s bold but not far-fetched. Look, from an equity perspective, think about the personal investment of inventors—research, time, resources. A royalty can’t always make up for the irreparable harm caused when someone else exploits their invention.

Angela

Exactly! And this is especially true for universities and startups. Many of them rely on patents to secure funding or licensing revenue. Without a reliable way to stop theft, it’s a huge blow to their confidence—and their wallets.

Erick

And the harm isn’t just financial. In high-tech industries, ongoing infringement can obliterate market opportunities. Competitors keep gaining ground, while the inventor watches helplessly.

Angela

Which brings us to the practical need for injunctions. Damages work for past harm, sure, but to prevent future harm, you need something stronger. You need a legal stop sign.

Erick

Yeah, otherwise, you risk permanently undercutting the very system that’s supposed to protect innovation. And without that, why would anyone invest in developing groundbreaking ideas?

Angela

They wouldn’t. The stakes are too high. Injunctions are what make patent rights meaningful. Without them, it’s like giving someone a car, but taking away the keys.

Erick

And that’s the bottom line here. This isn’t just a legal technicality. It’s about making sure patents work the way they were designed to—by giving inventors true control over their creations.

Erick

Looking at this bigger picture, it’s clear—we’ve spoken about why injunctions are vital, but the _eBay_ decision didn’t just weaken their role in patent disputes. It set off a chain reaction of changes that ripple far beyond patent law itself.

Angela

Totally. One of the biggest issues? Refusal to settle. Infringers, especially the big ones, suddenly had no reason to negotiate fair licenses upfront. Why would they, when they can gamble on litigation instead?

Erick

Exactly. And here’s the kicker—dragging out cases often costs less than paying a market-value license would have. So they figure, why not take their chances in court?

Angela

And it’s not just about cost either. By extending the legal process, these companies get to keep using the technology the whole time. It’s basically free R for them while the clock ticks.

Erick

Exactly. And for smaller players—your startups, universities—years of legal back-and-forth? It’s devastating. They don’t have the resources to keep up with that kind of war of attrition.

Angela

You know, I saw this first-hand with a university I worked with a few years ago. Their patent portfolio was their lifeline for funding future research, but when a major tech giant infringed, the court battles dragged on for—get this—seven years.

Erick

Seven years? That’s just... ugh. I mean, at that point, any settlement they get hardly feels like a win.

Angela

Exactly. By the time the case wrapped up, the tech was obsolete, and they’d spent millions on litigation. It was a textbook example of judicial inefficiency.

Erick

Yeah, and judicial inefficiency is a whole other can of worms here. Without injunctions, courts are stuck managing these sprawling lawsuits. More motions, more discovery—it all adds up, and the courts themselves pay the price.

Angela

Right. And the wasted resources? It compounds the chilling effect this has on inventors. Who’s gonna take the risk to innovate when the rewards are this uncertain?

Erick

They’re not. Especially startups. Venture capitalists see this landscape and think, “Why bother investing in an idea that a bigger competitor can just rip off?”

Angela

Exactly! To them, a patent without enforcement is basically worthless. And for independent inventors, it’s even worse—they don’t even have universities or firms to back them up.

Erick

Which brings us to the ripple effects beyond just individuals. When innovation stalls here, the ripple hits the broader economy—and geopolitics too.

Angela

Yeah, especially in industries like AI, biotech, quantum computing. Those are fields where the United States can’t really afford to fall behind. But without strong protections, we risk losing that edge.

Erick

To jurisdictions with stricter patent enforcement, right? Like Germany—they’ve got robust presumptions for injunctions. And their innovation sectors are thriving.

Angela

Exactly. It’s ironic, isn’t it? The U.S. has long been the gold standard for IP protection... but post-_eBay_, we’re kinda chipping away at that reputation.

Erick

And that’s the takeaway here—_eBay_ didn’t just weaken a legal remedy. It shifted an entire ecosystem into imbalance.

Erick

Considering how this imbalance impacts the legal ecosystem and innovation as a whole, there’s another dimension we need to discuss—the constitutional implications of denying injunctions. For inventors, it’s not just about fairness—it might even cross into unconstitutional territory.

Angela

Right. At its core, the Constitution grants inventors an “exclusive right” to their creations. Without the ability to enforce that exclusivity through an injunction, well, you’re essentially stripping them of that right.

Erick

Some call it a taking. You’ve got patent owners investing thousands, sometimes millions, of dollars into developing something—

Angela

—and then having courts turn around and say, “Oh, sorry, you can’t stop someone else from using it.”

Erick

Exactly. It’s all carrot, no stick, which runs completely counter to the whole point of the patent system—to reward innovation by giving inventors meaningful control over their work.

Angela

And this is where the Fifth Amendment’s Takings Clause might come into play. When the government—or in this case, the courts—essentially forces a patent owner to allow unauthorized use, is that a “taking” of private property for public use?

Erick

Some legal scholars argue that it is, and honestly, they have a point. Without court-enforced exclusivity, patents are reduced to, what, just another paper promise?

Angela

A paper promise, exactly. And let’s not forget—the injunction mechanism isn’t just about giving inventors rights. It prevents others from, well, trespassing on those rights. It’s no different than a property owner putting up a fence.

Erick

Right. And what’s crazy is patent law was built on the idea that this exclusivity is sacrosanct. For over two centuries, injunctions weren’t even questioned. They were the default remedy for infringement.

Angela

Which brings us to Congress. They have the specific authority to step in and clarify what these remedies should look like. The RESTORE Act, for example—it’s their way of saying, “Let’s get back to basics.”

Erick

Exactly. It’s about rebalancing the scales, ensuring that the system works the way it was intended to. And Congress couldn’t be clearer. If the courts won’t consistently protect the right to exclude, then the legislature has to do it for them.

Erick

So, building on that, let’s dive into how the RESTORE Act directly addresses these imbalances Congress is targeting. First up: how it recalibrates the scales for all stakeholders. Angela, wouldn’t you say one of its strengths is how it elegantly shifts the burden of proof?

Angela

Absolutely. By reinstating the presumption of an injunction, it ensures that patent owners—especially smaller players like startups and universities—aren’t left scrambling to prove irreparable harm. It shifts the playing field back to fairness.

Erick

Right, because the system post-_eBay_ favored large corporations. The RESTORE Act effectively says, “No more free rides if you’ve been found guilty of infringement.” It forces infringers to provide a compelling reason why they shouldn’t face an injunction.

Angela

Mm-hmm. And by doing that, it brings patent law back in line with other property rights. Think about real estate—if someone trespasses on your land, the default remedy is to stop the trespass, not just pay damages. Why should patents be any different?

Erick

Exactly. And that ties into another huge benefit: efficiency. When injunctions are back on the table, infringers are way more likely to negotiate upfront, rather than dragging things out in court.

Angela

Right. And that means earlier settlements, less crowded court dockets, and lower litigation costs for everyone involved. It’s a win-win—well, unless you’re the one benefiting from dragging things out, of course.

Erick

Which, let’s be honest, were mostly the big players who could afford endless litigation. The Act levels the field, giving smaller inventors and institutions a fair shot at enforcing their rights.

Angela

And it does all this while reaffirming the Constitution’s promise of exclusivity. Remember, the right to exclude is foundational—without it, the entire structure of the patent system kinda falls apart.

Erick

Exactly. And frankly, the RESTORE Act is just returning the system to its historical norms. For over two centuries, injunctions were the default remedy. This Act simply reinforces that tradition in a way that’s practical and fair.

Angela

But it does leave room for exceptions. The presumption is rebuttable, so courts still have discretion to deny injunctions in rare cases where there’s a truly compelling reason.

Erick

And that’s key. It’s not a blunt instrument; it’s a carefully balanced fix that addresses the inequities introduced by _eBay_, restores trust in the system, and incentivizes good behavior.

Erick

So, we’ve covered how the RESTORE Act brings balance and fairness back to the patent system, but like any major reform, it’s not without its critics. Angela, what’s your take on the most common concern we hear?

Angela

Oh, you mean the good old “patent trolls” argument? It’s the classic line—critics claim the Act will give non-practicing entities a loaded weapon to demand excessive settlements. But honestly, it doesn’t hold up under scrutiny.

Erick

Exactly. Because here’s the thing: the RESTORE Act only kicks in after a final judgment of infringement on a valid patent. We’re not talking about preliminary orders or early-stage cases.

Angela

Right—so by the time an injunction is even on the table, the court has already determined that the infringer was in the wrong. That’s a world away from frivolous claims or nuisance lawsuits.

Erick

Exactly. And let’s not forget—courts still have discretion. The presumption of an injunction is rebuttable, so in the rare case where granting one would be genuinely unfair or impractical, judges can deny it.

Angela

Mm-hmm. So it’s not some blanket win for “patent trolls.” If anything, it’s a much-needed recalibration to deter predatory infringement. And frankly, that argument feels like a distraction from the real issues.

Erick

Totally agree. Alright, let’s take on the next one—price increases for consumers. Critics say the Act could lead to more expensive products because companies might face stricter injunctions. What’s our counter?

Angela

Well, Erick, in practice, companies don’t just sit back and watch products get pulled from shelves. When faced with an injunction, they typically negotiate a license to keep selling their products. Consumers still get access, and inventors get fairly compensated.

Erick

Exactly. So it’s not about removing products—it’s about making sure patent owners aren’t left out in the cold. If a company knows it’ll lose access without a license, they’re more likely to negotiate from the start.

Angela

Right. And let’s not pretend stronger patent enforcement leads to massive price hikes. Licensing agreements are a small fraction of overall costs for most products. It’s just not as dramatic as critics make it sound.

Erick

No, it’s not. Besides, what’s the alternative? Stalling innovation by letting companies rip off inventions indefinitely? That’s a price nobody should be willing to pay.

Angela

Exactly—and that’s the irony, isn’t it? Weak enforcement doesn’t drive prices down; it drives innovators out. If startups and universities can’t enforce their patents, the ripple effects hurt everyone in the long run.

Erick

Spot on. Now, the last one worth addressing—international retaliation. Critics say reinstating injunctions could put the U.S. at odds with our trading partners. Thoughts?

Angela

Honestly? That argument feels overblown. Many of our biggest trading partners—Germany, for example—already have strong enforcement mechanisms. If anything, this brings us back in line with global norms.

Erick

Exactly. And historically, strong intellectual property enforcement has been a competitive advantage for the U.S. It’s what attracts foreign innovators to patent their technology here in the first place.

Angela

Right. Plus, think about industries like biotech and AI where the U.S. leads. Holding those patents to a high enforcement standard isn’t just about fairness—it’s about maintaining that leadership position globally.

Erick

Couldn’t agree more. When we improve enforcement at home, it only strengthens our standing internationally. So, those retaliation concerns? Not exactly persuasive.

Erick

So, Angela, following up on where we left off—let’s delve deeper into the recurring criticisms of the RESTORE Act. How about starting with the one that seems to grab the most attention?

Angela

Sure. Critics love to point to the “patent troll” argument. You know, this idea that the Act will empower non-practicing entities to extort settlements by threatening injunctions. But honestly, that criticism doesn’t really hold up.

Erick

Yeah, because this Act only applies after a final judgment of infringement. We're not talking about preliminary injunctions or speculative claims. By the time an injunction’s on the table, the court’s already ruled in favor of the patent owner.

Angela

Exactly. Plus, even after that final judgment, the presumption is rebuttable. Courts can still deny injunctions in exceptional cases where it’s truly unwarranted. It’s not some free pass for bad actors.

Erick

Right. So, the whole patent troll narrative? It’s a little overblown here. Alright, let’s take another one: the concern that stronger injunctions mean higher costs for consumers. What’s the counter on that?

Angela

Well, in reality, companies don’t just stand by and let products disappear from shelves. They negotiate licenses to keep selling. Consumers still get access to the products they need, and the inventor gets fairly compensated. It’s not the doom-and-gloom scenario critics make it out to be.

Erick

Right. And licensing fees are typically a fraction of production costs. They’re not gonna cause massive price hikes. It’s just another scare tactic to distract from the actual benefits of the Act.

Angela

Exactly. And let’s think big picture. Weak enforcement doesn’t lower costs—it undermines innovation. Startups and universities can’t thrive in a system where patents aren’t protected. And in the end, the whole economy pays the price.

Erick

Totally. Now, what about international retaliation? You think that one holds water?

Angela

Not really. I mean, look at Germany. They’ve got strong patent enforcement, and their innovation sectors are thriving. If anything, the RESTORE Act realigns us with global standards.

Erick

Exactly. And the U.S. has always been a magnet for innovators because of our strong IP protections. Restoring that strength just reinforces our leadership in fields like AI and biotech.

Angela

Right. The constitutional aspect reinforces that too. The RESTORE Act strengthens the foundational promise of exclusivity, which is key to encouraging investment in groundbreaking ideas.

Erick

And without that confidence, innovation dries up. It’s that simple.

Erick

So, Angela, thinking back to where we left off—it’s interesting how the RESTORE Act aligns with global standards and reinforces our innovation leadership. From that perspective, we’ve really covered a lot today, spanning its origins, practical fixes, and even the criticisms. There’s obviously a monumental shift at stake here.

Angela

Absolutely. And at its core, the RESTORE Act really brings patent law back to what it was meant to do—give inventors meaningful protection for their innovations. With the presumption of injunctions restored, it sends a clear message: the right to exclude matters.

Erick

Exactly. And restoring that right, for me, it feels overdue. You can’t foster innovation if the system lets bad actors game it. Inventors need to know their work won’t just be poached without recourse.

Angela

And it’s not just important for the individual inventors—though, of course, that’s critical—but also for the broader innovation ecosystem. Strong protections mean confidence for startups, universities, and all the stakeholders betting on groundbreaking ideas.

Erick

Right. And let’s not forget—it’s about fairness too. If someone infringes on your patent, you shouldn’t be stuck begging for damages when you’ve already won in court.

Angela

Exactly. The RESTORE Act reestablishes that balance, reminding both courts and infringers that patents aren’t just rubber stamps; they’re lifelines for innovation and economic growth.

Erick

Plus, there’s something so logical about it. It doesn’t rewrite everything—it’s a targeted fix that restores confidence in a system that’s supposed to reward ingenuity.

Angela

Right. And it has ripple effects across industries—from AI to biotech, even national security. Countries that protect innovation lead the way in the global economy. That’s been the U.S.’s story for generations, and I think the RESTORE Act helps us keep it that way.

Erick

Couldn’t agree more. With stronger patents, you build stronger incentives for everyone—from garage inventors to Fortune 500 companies. And frankly, it’s about time lawmakers stepped in to tighten the screws on a system that’s been too loose for too long.

Angela

Right. And that final takeaway? It’s simple: If patents aren’t enforceable, why would anyone invest in inventing the next big thing? The RESTORE Act is putting those keys back in the hands of innovators.

Erick

And on that note, I think we’ve wrapped it up. As always, it’s been great hashing this out with you, Angela.

Angela

Same here, Erick. Always a pleasure talking patents and innovation.

Erick

Alright folks, that’s all for today. Thanks for tuning in, and we’ll catch you next time.