U.S. Senator Chris Coons (D-DE), along with Sen. Thom Tillis (R-NC), have been the motivating force for patent reform for almost a decade, primarily in their efforts to roll back legislative efforts and judicial decisions having negative effects on U.S. innovation and the patent system (see "Senator Coons And Co-Sponsors Introduce the PREVAIL Act"; "Senators Tillis and Coons Once More Attempt to Fix Patent Eligibility"; "Senate Bill Proposed to Provide Subject Matter Eligibility Solution"; "Senate Subcommittee on Intellectual Property Holds Hearings on Proposed Revisions to 35 U.S.C. § 101"; "Congress Releases Framework for Section 101 Reform"). Yesterday, Sen. Coons and Sen. Tom Cotton (R-AR) introduced the Realizing Engineering, Science, and Technology Opportunities by Restoring Exclusive (RESTORE) Patent Rights Act of 2024 in yet another such effort, this time to restore the presumption that a patentee who has prevailed against an infringer at trial is entitled to an injunction (subject to equitable principles and a demonstrated negative effect on the public interest). Representatives Nathaniel Moran (R-TX1) and Madeleine Dean (D-PA4), joined by co-sponsors Hank Johnson (D-GA4), Deborah Ross (D-NC2), and Chip Roy (R-TX24) introduced a companion bill in the House of Representatives.
The bill, entitled the "Realizing Engineering, Science, and Technology Opportunities by Restoring Exclusive Patent Rights Act of 2024," contains but two substantive sections. Sec. 2 sets forth Findings, including that:
(1) Securing effective and reliable patent protection for new technologies is critical to maintaining the competitive advantage of the United States in the global innovation economy;
(2) The Constitution of the United States empowers Congress to grant inventors the "exclusive Right" to their inventions in order to "promote the Progress of Science and the useful Arts";
(3) The right to prevent others from making, using, offering to sell, selling, or importing a patented invention without authority from the inventor is the core of the patent right, ensuring that an inventor enjoys, for a limited time, the sole benefit of the inventor's invention or discovery;
(4) Congress and the courts of the United States have long secured the constitutionally protected patent right through the traditional equitable remedy of an injunction;
(5) Given the irreparable harm that is caused by multiple acts of infringement or willful infringement of a patent, courts historically presumed that an injunction should be granted to prevent such acts, with a burden on defendants to rebut such presumption with standard equitable defenses;
(6) Recently, courts have ended the approach described in paragraph (5), which contradicts the traditional, historical practice governing the equitable remedy described in that paragraph; [and]
(7) Eliminating the traditional, historical equitable practice of applying a rebuttable presumption of injunctive relief in the case of continuing acts of infringement or willful infringement of a patent has-
(A) substantially reduced the ability of patent owners to obtain injunctions to stop continuing or willful infringement of patents; and
(B) created incentives for large, multinational companies to commit predatory acts of infringement, especially with respect to patents owned by undercapitalized entities, such as individual inventors, institutions of higher education, startups, and small or medium-sized enterprises.
The remedy, set forth in Section 3, proposes to amend Title 35, Section 283 of U.S. Code to provide a rebuttable presumption:
(b) REBUTTABLE PRESUMPTION.-If, in a case under this title, the court enters a final judgment finding infringement of a right secured by patent, the patent owner shall be entitled to a rebuttable presumption that the court should grant a permanent injunction with respect to that infringing conduct.
If enacted, this provision would return patent litigation to status quo ante from the Supreme Court's decision in eBay v. MercExchange, where the Court removed the traditional presumption of the injunction right in the first wave of its now two-decade crusade to reestablish its primacy in patent law after a generation of the Federal Circuit decisions "quietly (and sometimes not so quietly) walking away from Supreme Court decisions the appellate court found inter alia contrary to it Congressional mandate to harmonize patent law" (and that stemmed from various periods in the Court's history where the Justices were more or less "friendly" towards the exclusivities awarded to patentees; see, e.g., Justice Jackson's adage that "the only valid patent is one which this Court has not been able to get its hands on." Jungerson v. Ostby & Barton Co., 335 U.S. 560, 572 (1949) (Jackson, J., dissenting).
It is unlikely that this effort will get much traction before the 118th Congress adjourns this fall, and its prospects will depend at least on the outcome of the November elections. But as many commentators (see, e.g., Mossoff, 2021, The Injunction Function: How and Why Court's Secure Property Rights in Patents, 96 Notre Dame L. Rev. 1581) have argued, and the Findings reflect, the absence of a presumption of an injunction has emboldened "efficient infringers," usually economic Goliaths, from infringement against patent-holding Davids on the basis that even if adjudged to infringe the penalty will be a royalty that may be less costly to satisfy than what a license would have cost them for respecting patent rights in the first place. It has often been the case that these Davids (Gates, Jobs, Amgen, Genentech, as well as university technology transfer) have been the engines of innovation for over forty years, and bringing back balance to these competing interests is likely to benefit American innovation and the economy. Stay tuned.
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