NPEs Should Be Able To Win Injunctions, Argues US Government

NPEs seeking injunctive relief in US district courts have faced an uphill battle over much of the past two decades. Under the Supreme Court's 2006 decision in eBay v. MercExchange, courts must apply a four-factor equitable test when deciding requests for permanent injunctions—including one factor requiring a party to show that it would suffer "irreparable harm" without an injunction. NPEs have historically struggled to clear that threshold, in part because they typically cannot show competitive harm from infringement beyond what damages, as a remedy at law, could compensate. However, the US government, via the Department of Justice's Antitrust Division and the USPTO, has now pushed the Eastern District of Texas to revisit that standard. The government argues in a June 24 statement of interest—filed in a case from Radian Memory Systems LLC (RMS)—that courts should consider the difficulty of valuing patents and calculating damages for their infringement when