IP Monday Law Blog 

Injunctions, Innovation, and the Problem We Can’t Price

There is a shift happening in patent law, but its real impact will not be felt in policy statements...it will be felt in federal courtrooms.

Recently, the United States Patent and Trademark Office (USPTO) and the Department of Justice (DOJ) filed a Statement of Interest in Collision Communications, Inc. v. Samsung Electronics Co., reinforcing a principle that has quietly eroded over time: a patent is a right to exclude, and injunctions are central to that right.

At first glance, that sounds obvious, patents have always been framed this way. But in practice, particularly over the last fifteen years, that right has softened. For many patent owners, the realistic outcome of enforcement has not been exclusion, it has been compensation.

This latest filing suggests a course correction and with that correction comes a harder question: who should actually have the power to shut down a competing product?

The Legal Foundation: The Right to Exclude

The statutory framework is clear. Under 35 U.S.C. § 283, courts “may grant injunctions in accordance with the principles of equity to prevent the violation of any right secured by patent.” That right, traces directly to the Constitution, which empowers Congress to grant inventors exclusive rights to promote the progress of science and useful arts. U.S. Const. art. I, § 8, cl. 8.

[The Congress shall have Power . . . ] To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

The government’s recent filing reinforces that patents are not merely economic instruments. They are property rights with exclusionary force. That framing matters because in litigation, how a right is characterized often dictates the remedy that follows.

The eBay Framework and the Shift That Followed 

Modern injunction analysis is governed by eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006). In eBay, the Supreme Court rejected both automatic injunctions and categorical denials. Instead, it imposed a four-factor equitable test:

1. Irreparable harm
2. Inadequacy of monetary damages
3. Balance of hardships
4. Public interest

That decision reshaped patent litigation. In theory, it restored balance and in practice, it often shifted outcomes toward damages. Over time, courts became more hesitant to grant injunctions, and operating companies became more comfortable treating infringement as a manageable risk.

The result is what many now describe as efficient infringement where the question is not “Can we do this?” but “What will it cost if we do?” The DOJ and USPTO appear to be pushing back on that dynamic.

Not All Patent Owners Are the Same

Any discussion of injunctive relief inevitably runs into the issue of non-practicing entities (NPEs). But that label hides important distinctions.

Universities, for example, are non-practicing entities. They conduct foundational research, often with federal funding and rely on licensing to bring that research to market. Without meaningful enforcement rights, including the possibility of injunctions, their model weakens. Why take a license early if competitors can simply use the technology and deal with damages later?

Licensing companies occupy a more nuanced middle ground. Some aggregate fragmented rights and facilitate access to innovation. Others rely more heavily on enforcement as a business model.

Then, there are patent assertion entities often labeled “trolls” that raise legitimate concerns. These entities may assert patents late in a product lifecycle, targeting companies after products are already deployed and redesign is costly.

Treating all of these actors the same under an injunction framework is both impractical and inconsistent with how the innovation ecosystem actually works.

The 'Gotcha' Problem and Enforcement Timing

For many operating companies, patent enforcement does not feel like a predictable risk, it feels like an ambush.

A patent surfaces after a product is launched. Claim scope becomes clear only through litigation. The accused feature cannot easily be redesigned. And the assertion arrives at the moment of maximum leverage.

This creates what can fairly be described as a “gotcha” dynamic where timing, not just merit, drives outcomes. That reality complicates the equitable analysis because while the legal right may be valid, the manner in which it is asserted raises legitimate questions about fairness and market impact.

A Useful Contrast: Standard Essential Patents (SEPs)

Standard Essential Patents (SEPs) provide a helpful comparison. SEPs cover technologies necessary to comply with industry standards: Wi-Fi, 5G, USB and are typically disclosed through standard-setting organizations. Their owners generally commit to licensing on fair, reasonable, and non-discriminatory (FRAND) terms.

This creates predictability. Companies know the landscape; they can anticipate licensing obligations. And disputes are more likely to center on pricing than exclusion.

In that environment, courts are often less inclined to grant injunctions because monetary compensation is expected to be adequate. The contrast is telling: where predictability increases, the need for injunctive relief often decreases.

The Ongoing Debate: Is This About NPEs?

Some commentators have suggested that the DOJ/USPTO filing places a “thumb on the scale” in favor of non-practicing patentees—particularly those who rely on enforcement rather than commercialization. (See e.g., USPTO and DOJ Statement of Interest in Collision Communications: Another Thumb on the Scale in Favor of NPE Patent Plaintiffs; Rich, Joshua, March 5, 2026, PatentDocs.org).

That concern is not without merit. Strengthening the availability of injunctive relief increases leverage. And leverage can be used in ways that feel disconnected from innovation in the traditional sense.

But focusing solely on NPEs risks missing the deeper issue. The concern about NPE leverage is real but it may be a symptom, not the cause.

The Valuation Problem That Nobody Wants to Solve

At the center of this debate is a more fundamental problem: we do not have a reliable way to value patents. Patent damages are built on hypothetical negotiations, what willing parties would have agreed to in a world that never actually existed.

Courts and experts construct models. Assumptions are layered on assumptions. Outcomes vary widely. And everyone involved, patentee, defendant, expert, and judge, knows that the number, at best, is an approximation.

That creates a structural tension within the eBay framework. If monetary damages cannot be calculated with confidence, how can courts conclude they are “adequate”? And if they are not adequate, the logic begins to tilt toward injunction.

Which raises an uncomfortable question: are we relying more heavily on injunctive relief not because harm is truly irreparable but because valuation is inherently uncertain?

Irreparable Harm and Doctrinal Drift

Under eBay, irreparable harm is supposed to be specific and demonstrable. But in practice, arguments have expanded to include:

• Loss of market position
• Competitive disadvantage
• Uncertainty in future licensing
• Difficulty in quantifying harm

At some point, the line begins to blur. Irreparable harm risks becoming less about the nature of the injury and more about the limits of economic modeling. If that happens, the system begins to drift toward something eBay rejected: a soft presumption of injunction.

Litigation Implications Going Forward

If courts take the DOJ/USPTO signal seriously, we are likely to see changes in how cases are litigated. Plaintiffs will focus more heavily on:

• Non-quantifiable harm
• Market dynamics
• Loss of control over technology

Defendants will emphasize:

• Lack of notice
• Predictability
• Timing of enforcement

And courts will likely respond by crafting more nuanced remedies, tailored injunctions, delayed enforcement, or structured licensing opportunities.

IP Monday's Take

Let’s call it what it is: we built a system that demands precision in valuing innovation—while dealing with assets that resist precision. Now courts are being asked to choose between two imperfect tools:

• Monetary damages that are inherently uncertain
• Injunctive relief that can reshape markets

The DOJ and USPTO are not trying to empower any particular class of patent holder. They are trying to restore credibility to the right to exclude. But once that right is strengthened, it applies across the board.

Closing Thoughts

The Constitution did not promise inventors a royalty, it promised them: an exclusive right. The challenge now is ensuring that right:

• Rewards innovation,
• Supports competition,
• And does not become a tool for strategic surprise

Maybe the real issue isn’t injunctions at all. Maybe it’s that we never solved the problem of valuing innovation with the level of certainty the law demands.

And now, faced with that uncertainty, courts are being asked to choose between imperfect math, and market exclusion. As courts grapple with uncertain patent valuation, injunctions are regaining relevance. If this trend impacts your licensing or litigation strategy, now is a good time to consult with a Foster Swift IP attorney and reassess your approach.