In an unusual move, the U.S. Department of Justice and U.S. Patent and Trademark Office submitted a “Statement of Interest” this week in a pending patent case in the Eastern District of Texas—sharing “views” on whether non-practicing patent plaintiffs can show irreparable harm to support a preliminary injunction.

While the government stops short of taking a position on whether the case facts warrant an injunction, the filing is noteworthy in several respects:

• The statement emphasizes that non-practicing entities (NPEs) are not categorically barred from proving irreparable harm under eBay v. MercExchange. eBay in turn had rejected a “general rule” that injunctions will issue after a finding of patent infringement and validity.
• Licensing a patent does not automatically make damages adequate, especially where market position or future licensing leverage is at stake.
• Difficulty in calculating damages may support injunctive relief—and according to the government, the Federal Circuit’s recent reversals in the damages context evidence the pitfalls in calculating patent damages.
• The statement rejects a return to blanket, equity-based rules but emphasizes that the right to exclude is fundamental to patent value.
• Submission of these statements is rare in the patent context, with only a handful similar examples over the past several years.

Key Takeaways

The statement signals increased emphasis on patents as an exclusionary right. And it comes as Congress considers legislation to strengthen injunctive remedies, including the RESTORE Act that would bring a rebuttable presumption for courts to permanently enjoin infringing conduct. The outcome of cases like this one could signal greater receptivity to injunctive relief and lead to an uptick in injunction requests—including from non-practicing plaintiffs that faced steep hurdles in showing irreparable harm in recent years.