By: Josh Sloat

Some significant new research has been released on the patent system and how it's currently functioning. This research focuses on the ability of patent owners to stop people from infringing on their patents. In legal terms, this is known as an injunction. The concept is straightforward: just as you can obtain an injunction to prevent someone from trespassing in your home or stealing your bicycle, patent owners should be able to get an injunction to stop someone from using their invention or technology without permission.

​An injunction is a court order that can compel the intruder to vacate the premises, return the property, or stop using it without permission. This legal mechanism is vital as it serves as a backstop to the ability of individuals to negotiate in the marketplace. Essentially, your ability to say "no" to someone using your property without permission enables you to demand fair compensation for its use, be it the sale of your home, your bicycle, or new technology protected by a patent.
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Unfortunately, a Supreme Court decision in 2006, known as the eBay decision, introduced a new test for receiving injunctions. ​Prior to eBay, injunctions were rightfully and practically a given if infringement was found. This new four-factor test has since had a significantly negative impact on the ability of patent owners to enforce their property rights. This claim has been hotly debated by those looking to further weaken the patent system, but new research has proven the devastating effects.

Recent research by Dr. Kristina M.L. Acri née Lybecker of Colorado College offers concrete statistical evidence of this impact. According to her rigorous statistical analysis, since the eBay decision, patent owners who license their patents — such as universities, inventors, and small startups – have seen a 91.2% reduction in their ability to obtain injunctions. Even manufacturing companies have experienced a 66.7% reduction in their ability to receive injunctions when others use their patents without permission. 
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​​Professor Adam Mossoff discussed this critical research in a recent Mossoff Minute:

This data is significant as it confirms a fundamental issue in the patent system today: patents are not being secured by courts as property rights. The inability to prevent others from stealing your property undermines and devalues that property.

Think of it this way: if someone started living in your bedroom and you couldn't kick them out, the value of your home would undoubtedly decrease. Similarly, in patent law, the fact that you cannot enforce your exclusive right against others leads to a devaluation of your patent in the marketplace.
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The Supreme Court justified its eBay Inc. v. MercExchange, L.L.C. decision by claiming it was applying a long-standing historical test for granting injunctions to patent owners. However, Professor Mossoff conducted an extensive review of all 19th-century patent cases – amounting to approximately 899 cases – and discovered that courts applied this so-called historical test exactly zero times. Yes, zero out of 899 cases.

The zero instances of test application highlight a critical point: despite the Supreme Court's justification, there was no historical precedent for their four-factor test. This discovery confirms that the Supreme Court changed the law on injunctions in 2006 and did so based on a historically inaccurate premise. 

This issue has destabilized and undermined the role of patents as property rights in our modern innovation economy. This research underscores the urgent necessity for evidence-based policymaking in rectifying this important system that has driven innovation for over 200 years. As Congress considers patent system reforms, or if the Supreme Court decides to revisit its 2006 ruling, this data will be crucial. The need for robust and fair protections for patent holders cannot be overstated. Ensuring that inventors can reliably protect their property rights is vital for encouraging ongoing innovation and maintaining the health of our innovation economy.
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The RESTORE Act was recently introduced in Congress, with the stated goal of restoring the presumption that courts will issue an injunction to stop patent infringers. The Realizing Engineering, Science, and Technology Opportunities by Restoring Exclusive (RESTORE) Patent Rights Act of 2024 has been sponsored by Senator Christopher Coons, Senator Tom Cotton, Representative Nate Moran, and Representative Madeleine Dean.

We unpacked this exciting news with Professor Mossoff and also tackled some of the bigger questions and criticisms surrounding the bill.

You can read the very brief bill language, it's findings, and one-pager using the buttons below.

To learn more about injunctions and the damage that's been caused by the inability to get them, listen to our Patent Wars podcast episode where we discuss the biggest problems plaguing the patent industry (injunctions are among the big three), with the reformers looking to fix it. 
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This blog post is a summary created from several installments of the Mossoff Minute, where we explore crucial developments in the world of patent law and its broader implications for innovation. Stay tuned for more insights, updates, and short-form videos on Instagram Reels, YouTube Shorts, and TikTok.

By: Josh Sloat

The most terrifying thing that can happen to a patent owner is receiving what’s called an IPR – or Inter Partes Review – petition. This is a tool that accused infringers can use to invalidate patents. And they have … to alarming effect. As we’ve discussed, the kill rate at the PTAB is staggering. The Patent Trial and Appeal Board – or as regular listeners of this audience more commonly know it as, the "Patent Death Squad" – has racked up a claim execution rate north of 84% and the death of thousands of valid patents at the hands of infringers looking to profit from innovations they didn’t invest in to create. This is an institution that is clearly out of balance and screaming for reform.

And while we continue to diligently work toward those necessary reform solutions, we also have to deal with the world as it is and craft the highest quality, most future-proof patents possible. So we’re dedicating Part 2 of our series on Patent Quality to creating a guide for how to help IPR proof your patent – things you can do when you write and prosecute patent applications before an examiner to maximize the likelihood that the resulting patent will survive the IPR that it could eventually experience if it’s a valuable patent.
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Your expert author of this guide is someone who’s spent considerable time in the belly of the beast, successfully representing both petitioners and patent owners. Our guest host today is Matt Phillips. Matt is a founding partner at Laurence & Phillips IP Law, a firm that has been recognized multiple times by US News & World Reports as one of the top fifty Tier 1 firms nationwide for patent law. Formerly, he was a partner at an AmLaw 200 firm, law clerk for Judge Alan D. Lourie at the U.S. Court of Appeals for the Federal Circuit, patent examiner at the USPTO, and communications systems engineer. Matt has a doctorate degree in electrical engineering.  

Matt’s practice focuses on the types of proceedings that can happen with your patent after it’s been granted – including review proceedings at the PTAB, reexaminations, and reissues. According to Matt, post-grant proceedings are about 80% of what he’s done for the past 10-15 years. He also created and taught the “Post-Grant Patent Practice” course for the Patent Resources Group for eleven years and is a co-author of a two-volume treatise of the same name. Matt has taught as an adjunct law school professor. He has published over 40 articles on post-grant patent topics and been an invited speaker around the country and internationally on post-grant topics. We couldn't imagine a better host to help us navigate this topic.

Building nicely on so much of the framework established in the prior episode of this series on crafting quality patents, Matt and the panel discuss:

​​​Matt is joined today by our always exceptional group of IP experts, including:

In this month's double-feature Mossoff Minute, Professor Adam Mossoff discusses recent studies featuring significant statistical analysis empirically proving that there are fundamental issues with the patent system when it comes to obtaining injunctions to stop infringers from stealing your IP. ​We’re also publishing excerpts as short-form videos on Instagram Reels, YouTube Shorts, and TikTok.
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Patently Strategic is available on all major podcasting directories, including Apple Podcasts and Spotify. We're also available on 12 other directories including Stitcher, iHeart Radio, and TuneIn, so you should be able to find us wherever you listen to podcasts.
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