Published OnMarch 8, 2025
The Erosion of Patent Rights: How eBay v. MercExchange Eroded America's Innovation Landscape
The Patent Litigation PodcastThe Patent Litigation Podcast

The Erosion of Patent Rights: How eBay v. MercExchange Eroded America's Innovation Landscape

This episode unpacks the pivotal eBay v. MercExchange Supreme Court case and how its four-factor test reshaped patent law, reducing permanent injunctions. We explore its impact on small innovators, the rise of "predatory infringement," and proposed reforms like the RESTORE Act of 2025. Experts discuss how these changes influence U.S. innovation and global competitiveness.

Chapter 1

Historical Context of Patent Injunctions

Erick

Welcome to episode 2 of the Patent Litigation Podcast. Today, I along with my friend, fellow patent litigator, and law school professor, Dr. Angela Liu, will be discussing the erosion of patent rights since the US Supreme Court's unfortunate decision in eBay v. MercExchange.

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

Thanks for joining me again, Angela!

Dr. Angela Liu

Honored to be here, Erick!

Erick

Patents have always been considered a type of property right, and for the longest time, injunctions were the cornerstone of enforcing those rights. Essentially, if someone infringed your patent, the courts stepped in to stop them from continuing—not just hand you monetary damages.

Angela

Right, and that exclusivity gave patents their real value. It was like this built-in safety net for inventors. You violated it? Bam, injunction. It made potential infringers think twice before even attempting to copy someone’s innovation.

Erick

Exactly. There was this presumption—irreparable harm. Courts assumed that infringing someone else’s patent caused damage that couldn’t be undone with just money.

Angela

And that’s central to why injunctive relief was so significant. It maintained the exclusivity patents are supposed to grant. Without it...

Erick

...you’re left with a situation where the whole idea of owning a patent starts to crumble. The essence was always "I can exclude you."

Angela

Here’s what’s interesting though: courts weren’t necessarily trying to bankrupt infringers with those orders. Injunctions, back then, were more about lining up what’s fair. Like, you take someone’s invention without permission, you’re responsible for stopping, no question about it.

Erick

Right, and case examples—plenty of them—illustrate how this approach wasn’t just about fairness. The deterrent effect was massive. Companies had to weigh the very real risk of an injunction shutting down their operations or keeping a product off the market.

Angela

Yeah, that fear factor was key. It made copying a patented innovation a much more calculated risk. And, economically, it helped bolster smaller inventors and startups. They could license their patents from a position of strength, knowing that the law recognized their exclusivity.

Erick

And it wasn’t just smaller entities. Even for big players, the principle of strong injunctive relief meant that patents held real muscle. Patent holders could go to court confident that their property rights were backed by enforcement with teeth.

Angela

Judicial attitudes certainly reflected that. Before eBay, there was this consistency—almost an automatic assumption that if infringement was proven, a court would stop it. No endless debates, no new tests or hurdles to jump through.

Erick

Exactly. And when you consider how this shaped innovation and competition, it paints a picture of a system that worked to protect inventors rather than undermine them.

Chapter 2

The eBay v. MercExchange Case Overview

Erick

Which brings us to the pivotal eBay v. MercExchange case. This legal battle turned the historical assumptions about patent enforcement on their head. To set the stage, it centered on MercExchange's patent for a type of online auction technology, questioning whether an injunction was still the go-to remedy for infringement.

Angela

Right. MercExchange had this patent that eBay incorporated, you know, without permission, into their website. What made this unique though was MercExchange wasn’t actually operating a business off this patent anymore. They’d transitioned into licensing it after failing to commercialize directly.

Erick

Exactly. And because of that, when MercExchange sought an injunction to stop eBay from infringing, the district court...well, they denied it. The reasoning? MercExchange wasn’t “practicing” the patent. You can see how that started to skew the conversation.

Angela

And they took it up to the Federal Circuit, which reversed that decision, saying injunctions were still appropriate. At that point, granting injunctions was pretty much standard practice for this type of case. But then, of course, eBay appealed, and the Supreme Court stepped in.

Erick

It’s interesting because the Supreme Court rarely weighs in on patent disputes like this. But their move here sent a clear signal—they wanted to reexamine what seemed like an automatic rule for injunctions.

Angela

And that’s where it got intriguing. Both sides dug in with very different arguments. MercExchange, the patent holder, pushed the idea that injunctions were essential—otherwise, what’s the value of owning a patent if you can’t enforce exclusivity?

Erick

Meanwhile, eBay leaned on the idea that MercExchange, as a licensing entity, wasn’t actually harmed in the same way. Their stance? Damages could compensate for the infringement, making an injunction unnecessary. It was almost a challenge to the traditional view of patents.

Angela

Right. And on top of that, we saw amicus briefs flooding in—from big tech players, industry groups, even smaller inventors. Everyone weighed in because, honestly, the stakes were huge. A ruling here wasn’t just going to hit eBay and MercExchange—it was going to ripple through the entire patent system.

Erick

Exactly. And the reactions started even before the ruling. You had some folks applauding this as a chance to curb perceived abuses by non-practicing entities, and others ringing alarm bells about how this could weaken patent rights across the board.

Angela

The level of public and industry interest in this case was massive. Everyone knew this wasn’t just another patent lawsuit—it was shaping up to be a moment that could redefine the balance between patent holders and implementers.

Chapter 3

The Supreme Court's Decision and the Four-Factor Test

Erick

And then, we come to the Supreme Court’s ruling in eBay v. MercExchange—this decision didn’t just make waves; it essentially rewrote the playbook on patent injunctions. Instead of the automatic assumption that infringement meant an injunction, the Court stepped in and said, “Let’s rethink this.”

Angela

Right. And that’s where the now-famous four-factor test came in. The Court essentially put this burden on patent owners to prove four very specific elements to justify an injunction.

Erick

Exactly. First, they had to show irreparable harm. Second, that money alone—damages—wouldn’t fix things. Third, that the balance of hardships weighed in their favor. And, lastly, that the public interest wouldn’t suffer by granting that injunction.

Angela

But here’s the thing—the burden wasn’t just theoretical. It inspired a pretty dramatic shift in how courts approached these cases. Before eBay, injunctions were practically automatic once infringement was shown. This decision took that presumption and, well, threw it out the window.

Erick

Right. And when you dig into the majority opinion, it’s clear they wanted flexibility—no categorical rules. The idea was to make the process “fairer” based on the specifics of each case.

Angela

But that flexibility cut both ways. Justice Kennedy’s concurrence went on to emphasize that injunctions might not always be appropriate, especially for...you know, patents held by non-practicing entities or covering a tiny piece of a complex product. That opened the door for courts to rethink how they applied this decision.

Erick

Exactly. And interestingly, the majority didn’t single out these entities or components, but Kennedy’s comments gave lower courts a kind of nudge. You could argue it created a bias against those very situations he described.

Angela

Totally. It was a shift—intentional or unintentional—from just following established practices to, well, scrutinizing who the patent holder is. Are they manufacturing? Or just licensing? Courts started treating these patent owners very differently after eBay.

Erick

And let’s not forget Chief Justice Roberts’ concurrence, too. He tried to pull things back to historical practices for balance, but you could already see how this would splinter interpretations moving forward.

Angela

Exactly. For many in the legal community, the ruling was polarizing. Some thought it was modernizing patent law by recognizing economic realities. Others? Total disaster for smaller inventors—like, the foundation of their negotiation leverage was just gone.

Erick

And the predictions at the time reflected that split. Critics forecasted a weaker system that would benefit big tech companies, while supporters were like, “Hey, this levels the playing field.” It’s interesting to see how both sides have played out since then.

Angela

Yeah, and what’s fascinating is how quickly this started reshaping not just the courtroom but licensing deals, strategies, even investor confidence in patents.

Chapter 4

Immediate Impact on Patent Litigation

Erick

After eBay, we began to see a ripple effect in how courts approached injunctions. It wasn’t just about rethinking the rules; it was a shift in mindset where what used to be expected—an automatic injunction—suddenly became a much harder ask.

Angela

And that shift wasn’t subtle. Court statistics show a clear drop. I mean, before eBay, 94 to 100 percent of injunction requests were granted if patent infringement was proven. After eBay? That plummeted. By 2013, studies showed it was down to around 72 percent, and for non-practicing entities? Less than 16 percent in most cases.

Erick

Right, that drop wasn’t just numbers on a page—it reflected a bigger change in strategy. Patent holders suddenly had to prove much more to justify an injunction. For many, that shifted the risk calculus entirely.

Angela

Absolutely. And you saw this play out in real-time with licensing discussions too. The threat of an injunction used to bring infringers to the negotiating table with an incentive to settle quickly. Take that away, and suddenly, their whole approach changed.

Erick

Behavior shifted on both sides. Alleged infringers realized they could just wait it out, knowing injunctions were harder to come by. And for patent holders, the leverage they once relied on? Gone.

Angela

That’s where settlement negotiations really started to shift. Without the immediate threat of shutting things down, negotiations became slower, tougher. I’ve heard so many cases where what should’ve taken months instead dragged on for years.

Erick

And it wasn’t just settlements. Even in the courtroom, district courts faced challenges applying the four-factor test consistently. Some leaned into Justice Kennedy’s comments about avoiding injunctions for non-practicing entities; others tried to stick closer to traditional interpretations.

Angela

The inconsistency was huge. And that unpredictability made patents feel like weaker assets overall. Companies started looking for alternative ways to resolve disputes—mediation, arbitration, you name it. Anything to avoid the unpredictability of court decisions.

Erick

Exactly. It’s no coincidence that alternative dispute resolution mechanisms gained traction right after this decision. For some parties, it was just a matter of avoiding the delays and uncertainties that eBay had introduced.

Angela

Still, this all came at a cost. Weaker injunctions meant weaker patents, and that ripple effect extended far beyond individual cases, reshaping how the entire system worked.

Erick

And that’s the key, isn’t it? The deeper issue was how these changes set the stage for what came next...

Chapter 5

Rise of Predatory Infringement

Erick

And one of the most significant ripple effects we’ve seen? Predatory infringement. This is when companies intentionally choose to infringe on patents because, with weaker injunctions, the risks are now often outweighed by the potential rewards.

Angela

Right. After eBay effectively reduced the threat of injunctions, infringers realized they could just copy someone’s invention, use it, and—worst case? They’d have to pay damages, which are often far less than what a licensing agreement would cost upfront.

Erick

It’s the ultimate "infringe now, pay later" strategy.

Angela

Exactly. And the really frustrating part? For big corporations with deep pockets, paying damages is a drop in the bucket. They can delay for years, litigating and exhausting the smaller patent holders along the way.

Erick

The imbalance is stark. For these large companies, it’s just a line item—a calculated cost of doing business. But for small inventors or startups...

Angela

...it can be devastating. I mean, we’re talking about individuals or small teams who poured their resources into developing something innovative. And when big players swoop in and use that innovation without permission, it wrecks their ability to compete.

Erick

Take licensing, for example. Before eBay, the threat of an injunction gave patent holders leverage. Companies knew they couldn’t just ignore demands for a license. But now, that leverage? It’s gone, especially for non-practicing entities.

Angela

And when injunctions are off the table, the entire dynamic of licensing shifts. Patent holders can’t command the same terms. Infringers know the worst-case scenario is a court deciding damages—which, let’s face it, often undervalues the technology.

Erick

Absolutely. They’re lowballing the damages or dragging out negotiations because there’s no immediate consequence for refusing to settle.

Angela

And let’s talk about public perception for a second. We’ve seen a narrative emerge where infringing isn’t even viewed as theft anymore. It’s just…business. That weakens the respect for patents as enforceable rights.

Erick

Which is dangerous. If patents lose their enforceability, they lose their value altogether. Why invest in innovation if you know someone else can just take your work and, at worst, write you a check later?

Angela

Exactly. And that brings us to the ethical piece, because predatory infringement isn’t just a systemic problem—it’s a moral one. When companies prioritize profit over respecting intellectual property, it undermines the entire innovation ecosystem.

Erick

And it’s not just small inventors feeling the squeeze. Universities, research-focused firms—they’re all seeing dwindling returns on their intellectual property because of this kind of behavior.

Angela

Right. The whole system seems to be rewarding resource-rich companies at the expense of the very people—the inventors, innovators—who patents are supposed to protect. It’s like the rules of the game have fundamentally shifted.

Erick

And that shift has tilted the playing field even further for those with the most power.

Chapter 6

Effects on Small Businesses and Individual Inventors

Erick

That tilted playing field we mentioned is nowhere more evident than with small businesses and individual inventors. What used to be a system built to protect and empower them has now turned into an uphill battle post-eBay.

Angela

Absolutely. The challenges are everywhere—starting with the basic ability to secure an injunction. Without that, smaller inventors often can’t stop large companies from using their technology. It’s like having a locked door but no key to enforce it.

Erick

And think about the financial impact. A small startup doesn’t have the resources to fund years of litigation just to recover damages. For them, waiting isn’t an option; it’s survival.

Angela

Exactly! I read about this inventor, a small guy, who had a breakthrough in clean tech. A major corporation started using his patented process without permission, and even though he had a clear case of infringement, he couldn’t get an injunction to stop them. By the time he won damages, his business was…basically gone.

Erick

And that story—unfortunately—is far from unique. Barriers to entry have grown massively. If you’re a startup looking to launch a new product but find out a larger company is already infringing on your patent, where do you even begin?

Angela

It’s a nightmare. The thing is, a strong patent used to be enough to secure funding. Investors saw it as a form of protection, confidence that your technology had inherent value. Now? Without the backing of enforceable exclusivity, patents don’t carry the same weight.

Erick

Right. And that’s forced smaller businesses to rethink strategies altogether. Instead of innovating openly, they’re being more cautious—either holding back on filing patents or trying to work around big players they fear might infringe.

Angela

And that strategy shift can stifle innovation on its own. I mean, we’ve seen small businesses move to holding trade secrets instead of patents, but that’s…not really ideal. Trade secrets don’t promote knowledge sharing or progress the same way patents do.

Erick

Yeah, it’s a system-wide issue. Advocacy groups and legal reform initiatives have been stepping in to try to support small inventors, but resources are limited. And let’s face it—even with support, the imbalance of power is staggering.

Angela

It really is. And that’s why some organizations have started lobbying for patent law reform that specifically addresses the challenges faced by small innovators. But the question is, will it happen soon enough to make a difference?

Erick

It’s hard to say. The broader reality is that small entities are still at a disadvantage, with the playing field tilted heavily in favor of those who can afford to litigate endlessly—or just ignore the rules altogether.

Angela

And that’s what makes these stories so frustrating. Patents are supposed to serve as a tool for leveling the playing field, but for many, they’re starting to feel more like a roadblock than an advantage.

Chapter 7

Impact on Universities and Research Institutions

Erick

The fallout from eBay doesn’t just stop with small businesses and individual inventors—it’s reached universities and research institutions as well. For them, patents have been more than just legal tools; they’ve been critical for driving technology transfer and funding groundbreaking innovation.

Angela

Exactly. Universities rely on those patents to license out groundbreaking discoveries. It’s how they fund further research, right? But now, without the threat of an injunction, that entire ecosystem has been shaken up.

Erick

And not in a good way. I mean, take AUTM data for example. Pre-eBay, you saw universities brokering exclusive licenses all the time. That exclusivity was the selling point. Post-eBay? Non-exclusive licensing has skyrocketed, and it’s not because universities suddenly changed their preferences.

Angela

No, it’s because infringers don’t see exclusivity as enforceable anymore. Why pay premium for exclusivity when the courts might not back you up if someone else infringes?

Erick

Exactly. And that means less licensing revenue overall. Universities used to command much higher fees for deals, knowing companies valued the monopoly a patent should provide. Those days? They’re fading fast.

Angela

It’s a ripple effect too. Universities are losing income, which means there’s less funding going back into research programs or those ambitious, high-risk projects. And for some institutions, that’s the difference between thriving research centers and, well, bare bones operations.

Erick

I’ve heard firsthand how tech transfer offices are grappling with this shift. Some have started focusing on licensing volume over exclusivity, but that’s only a band-aid. It doesn’t fix the underlying problem, does it?

Angela

Not even close. And let’s not forget about enforcement. Universities, especially public ones, don’t have the resources to take on infringers in lengthy legal battles. Without injunctions, they’re basically forced to accept whatever crumbs they can get—or just walk away.

Erick

There’s a case—I’m sure you’ve heard this one—where a university patented incredible biopharma tech. When a major company infringed, they couldn’t get an injunction and spent years fighting for fair compensation. By the time they succeeded, the market window had already closed for their discovery to make an impact.

Angela

Heartbreaking, right? And it’s not just biopharma. Engineering, clean tech, even AI research—they’re all facing the same uphill battles. Collaboration between academia and industry used to be straightforward: universities brought the breakthroughs, companies turned them into products. Now, those partnerships have so much more friction.

Erick

And that’s dangerous. When companies hesitate to partner because of patent uncertainties or schools can’t defend their work adequately, innovation across the board takes a hit. It’s like we’re dismantling the very mechanisms that encouraged big ideas in the first place.

Angela

Plus, there’s the broader impact on academic innovation. If professors or researchers see their work being steamrolled without options to enforce their rights, it discourages everyone. Why disclose your research at all?

Erick

And why should companies trust university patents if they seem flimsy? It’s a vicious cycle. Weakened patents lead to weaker negotiations, which then reduces the incentive to innovate on both sides of the aisle.

Angela

That’s why universities are starting to rethink their strategies. We’re seeing more of them invest in consortiums or pooling patents as a way to bolster their bargaining power collectively. They’re trying to stay afloat, but it’s reactive rather than proactive.

Erick

And it doesn’t solve the core issue, which is how post-eBay litigation has eroded confidence in patents as enforceable assets. That erosion has, frankly, narrowed the scope of what’s possible for universities.

Chapter 8

Influence on Patent Valuation and Licensing

Erick

We ended by touching on how universities are adapting, but at the heart of it, it’s the perception of patents that’s unraveled. What was once a powerhouse asset, a guarantee of enforceable rights, now feels like just a piece of paper.

Angela

That shift has been dramatic, especially post-eBay. The way patents are valued today? It’s almost like they’ve lost their teeth. If you can't actually exclude someone from using your invention, well, what's the point of calling it exclusive?

Erick

Exactly. And the ripple effect on licensing is undeniable. Companies that used to negotiate licenses upfront are now dragging their feet, waiting to see if they can get away without paying anything at all.

Angela

And when they do negotiate, the terms look different. Flat fees, lower running royalties—it’s like everything’s been recalibrated since the value of securing an injunction disappeared.

Erick

That’s just it. Injunctions forced parties to the table. They leveled the playing field for patent owners. Without them, infringers hold all the cards.

Angela

And if you look at the bigger market, it’s not just individuals feeling this. The entire ecosystem for buying and selling patents has changed.

Erick

Totally. Buyers—especially aggregators—are factoring in the reduced enforceability, driving lower prices across the board. People who built their portfolios for leverage? They’re seeing returns tank.

Angela

Don’t forget cross-licensing deals. Back in the day, they were rooted in mutual respect—“I don’t step on your toes, you don’t step on mine.” Now it feels like some companies are more willing to run roughshod over patents, thinking, "What’s the worst that could happen?"

Erick

And it doesn’t stop there. We’re even seeing new business models emerge—patent holders moving into non-exclusive licensing just to stay relevant. But that? That’s a far cry from the muscle patents used to flex.

Angela

Right, and those non-exclusive licenses? They work for some, but they don’t fully compensate for the lack of exclusivity. It’s like trading a sign of ownership for a "use at will" agreement because you can’t enforce the locks on your door.

Erick

And what about those patent aggregators’ strategies? They’re now focusing on volume—snapping up as many patents as possible, knowing individual enforcement struggles lessens their risk.

Angela

It’s almost like they’re playing the dilution game. More patents in the portfolio, more odds that at least some hold value, even if the rest get ignored in practice. But let’s be honest—that approach wouldn’t be necessary if enforceability hadn’t taken such a hit.

Erick

Exactly. It’s this growing trend where patents aren’t valued as assets by themselves anymore—they’re becoming tradable commodities, like poker chips in bargaining games, rather than tools of innovation.

Angela

And the innovators? The ones who should be profiting from their work? They’re the ones most out in the cold. It paints a pretty bleak picture when you think about what the patent system was originally intended to protect.

Chapter 9

International Competitiveness and Patent Rights

Erick

It’s interesting—when you think about how much the U.S. patent system has shifted from protecting innovators, especially after eBay, it’s almost surprising to see how Europe and Asia still treat enforcement with a level of rigor closer to what patents were originally meant to ensure.

Angela

Oh, absolutely. In Europe, for instance, injunctions still hold that automatic-presumption feel, especially in countries like Germany. In fact, German courts are famous for their strong enforcement of patent rights. If you infringe there, you face swift and...frankly, harsh consequences.

Erick

And that creates a very clear contrast. Innovators operating in the U.S. see their assets devalued, while European jurisdictions become hotbeds for aggressive enforcement. I mean, companies are actively picking venues for stronger patent protection.

Angela

Here’s the thing: it’s not just about stronger legal remedies—it’s about certainty. Patent holders in Germany or even Japan know what to expect when they litigate. There’s no four-factor dance to frustrate them. It’s decisive, which makes those systems look a lot more attractive for businesses and inventors alike.

Erick

And then there’s the ripple effect. When international companies see those systems prioritize enforcement, they think twice before infringing. Compare that to here in the U.S., where the lack of injunctive relief has emboldened exactly the opposite behavior.

Angela

It’s a stark contrast, and honestly, the timing couldn’t be worse. The U.S. is already facing challenges maintaining its edge in global tech innovation, and when companies start moving R to Europe or Asia...

Erick

...it’s not just a loss of patents. It’s jobs, investment, entire industries potentially uprooting. We’re seeing these innovation centers relocate simply because those countries seem to care more about protecting intellectual property.

Angela

Take Huawei, for example. They’ve been leveraging patents aggressively in Europe, where they know enforcement favors them more than it would in the U.S. It’s like they’ve adapted to play by rules that prioritize their advantage, and American companies struggle to counteract that under weaker protection here.

Erick

And you can hardly blame them. When foreign competitors see the U.S. patent system as lenient or slow, they capitalize on it. There’s just no denying it anymore—weakening enforcement here means other countries are stepping up to fill the gap.

Angela

Right, and that’s where the economic consequences hit harder. We’re not just talking a handful of inventors losing exclusivity here. It’s foreign direct investment shifting away from the U.S., tech hubs popping up elsewhere.

Erick

And for those tech hubs abroad, stronger patent enforcement isn’t just a perk—it’s a competitive strategy. It attracts global innovators who want certainty, which these days is something the U.S. just doesn’t deliver.

Angela

The irony? We used to lead the world in this, setting the gold standard for intellectual property protections. Now, countries like China are leveraging stronger enforcement policies in targeted areas, even as they still catch up in certain other measures.

Erick

It all paints a pretty grim picture. What’s at stake isn’t just leadership in technological advancement. It’s influence over the broader global standards too. If America’s IP is devalued domestically, its competitive weight internationally starts to diminish.

Angela

Exactly. And let’s face it—companies go where enforcement gives them an edge. Until the U.S. makes reforms to restore meaningful exclusivity to patents, we’ll keep losing out. Nations that restore value through enforceability will soak up that momentum.

Chapter 10

Legislative and Policy Solutions

Erick

Which brings us to the RESTORE Act of 2025. After everything we’ve discussed about declining U.S. patent competitiveness, this might be the most ambitious legislative push to bring balance back to enforcement, don’t you think?

Angela

Absolutely, Erick. The Patent Rights Restoration and Enforcement Act—or RESTORE Act, for short—is designed to tackle some of the systemic issues we’ve discussed today, especially post-eBay. At its core, the Act introduces a rebuttable presumption of irreparable harm for patent infringements. It’s about realigning the system by giving patent holders more leverage when their rights are being violated.

Erick

And it’s not just a reset to pre-eBay, though. It’s more surgical, addressing specific imbalances. For instance, it stops courts from using a patent owner’s business model—like whether they license instead of manufacture—as the sole reason to deny an injunction.

Angela

Yeah, and that’s huge. Think about all those non-practicing entities, universities, and R firms that have been sidelined because they don’t "manufacture." This levels the playing field for them.

Erick

It also directly addresses component patents. You know, those cases where one small but critical patent gets buried because it’s just a component in a larger product. Now courts can’t use that as an excuse to deny enforcement.

Angela

Right. But here’s my favorite part—courts are required to think long-term. When weighing the public interest, they have to consider how denying injunctions systematically impacts innovation at a broader level. It’s not just about short-term consumer disruption anymore.

Erick

Exactly. That kind of foresight is refreshing, especially in a system where immediate economic impact often outweighs long-term consequences.

Angela

And beyond legislative fixes, groups like inventor coalitions and tech transfer offices are rallying in support. They’re flooding Congress with data that shows how weakened enforcement undermines U.S. competitiveness. This isn’t just a legal issue; it’s economic policy.

Erick

True, but let’s not ignore the pushback. Big tech companies, the ones benefiting most from weaker enforcement, are digging in. Their argument? Stronger injunctive relief risks, and I’m quoting here, "patent holdups." Essentially, they’re worried about licenses costing more under threat of injunction.

Angela

Right, but the RESTORE Act’s preservation of judicial discretion addresses that. Injunctions wouldn’t be automatic. Each case would still hinge on the facts, just with the scales rebalanced to reflect traditional property rights.

Erick

And looking ahead, what’s the outlook? Will the reforms pass? Or are we stuck with the status quo?

Angela

It’s hard to say. The Act has bipartisan support, which is promising, but with lobbying being what it is, nothing’s guaranteed. What’s clear, though, is that awareness is growing. Patents need their teeth back, and reform—whether through this bill or another—is inevitable if the U.S. wants to remain an innovation leader.

Erick

And that’s the big takeaway, I think. Patents are the backbone of innovation, but without enforceable rights, they’re just, well, paper. Reform isn’t just about fairness—it’s about ensuring America stays competitive on a global stage.

Angela

Exactly. If we want to incentivize bold new ideas, the legal framework has to support those who create, not those who copy. And with legislation like the RESTORE Act, we’re moving in the right direction.

Erick

Well said, Angela. And with that, we’re wrapping up today’s episode. As always, it’s been great breaking this down with you.

Angela

Likewise, Erick. To everyone listening, remember—innovation thrives where rights are respected. Thanks for tuning in, and we’ll see you next time!

About the podcast

The Patent Litigation Podcast by Erick Robinson explores into the intricate world of patent disputes, bringing together expert insights on legal strategies, landmark cases, and industry trends. Here, we interview seasoned litigators, judges, and technical experts who 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.

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