March 4, 2025 • 30 mins
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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(00:55):
Welcome to the first episode of thePatent Litigation Podcast, where we talk
about the intricate world of patentdisputes, providing insight and
interesting viewpoints on legalstrategies, landmark cases, and industry
trends.
We and industry experts share practicalwisdom on every phase of patent
(01:17):
litigation.
From pre-filing considerations topost-trial remedies, we deliver valuable
perspectives for attorneys, in-housecounsel, inventors, and business leaders.
As always, the views and opinionsexpressed in this podcast do not
necessarily represent those of BrownRudnick.
(01:39):
This podcast is presented forinformational and educational purposes
only.
Today, I am here with my friend andpatent litigator extraordinaire, law
school professor Dr.
Angela Liu.
Thanks for joining me today, Dr.
LiuPlease Erick!
We are friends -- call me Angela!Alright,Angela let's dive right in.
(02:01):
Today, we're talking about the RESTOREPatent Rights Act of 2025.
A bill that's, well, in many ways, bothstraightforward and transformative.
It's one of those legislative effortsaimed at fixing what some might call
a-ah, shall we say-a critical flaw in ourpatent system.Yeah, and when you say
(02:22):
'critical flaw,' you're talking abouthow, since 2006, patent owners haven't
been able to rely on getting a permanentinjunction when their patents are
infringed.
Essentially, courts started saying, "Showus why money isn't good enough."Exactly.
And that's a big shift.
Look, patents are supposed to giveinventors the right to exclude others
from using their invention.
(02:43):
But if you can't stop someone--thenwhat's the point of having a patent,
right?Right.
It's like saying you own a house, butanyone can live in it as long as they pay
you rent after a court battle.
That's where the RESTORE Act comesin.Mm-hmm.
So, the bill proposes a simple fix.
Once a court decides that someone hasinfringed a valid patent, the patent
(03:07):
owner gets a rebuttable presumption of apermanent injunction."Rebuttable
presumption" being the key phrase here.
It means the default position is, "Yes,the patent owner deserves an injunction."
But if the infringer can prove there's acompelling reason not to grant one, they
can rebut that presumption.So, it's notautomatic.
(03:29):
Courts still have discretion, but itflips the burden back to the infringer,
which is-well, it's how the system workedfor, what, two hundred years before
2006?Exactly.
And the beauty of the Act is itssimplicity.
It doesn't rewrite patent law; it justrestores what used to be an assumed
remedy when someone infringed yourpatent.And the reasoning behind it is
(03:53):
pretty hard to argue with.
If someone has been found guilty ofinfringement after a final judgment, why
should they get to keep using theinvention unless there's a really good
reason?Yeah, the Act essentially says,"Let's make patents meaningful again."
And it cuts down on the "infringe now,pay later" mindset that's been plaguing
(04:13):
the system for years.You know, it'sreally fascinating how this debate over
injunctions isn't just about modernlegislation-it's deeply tied to the core
purpose of patents.
I mean, the right to exclude others iswhat gives the entire system its
constitutional backbone.Right, it's thewhole point of the patent "bargain." You
(04:35):
disclose your invention to the public,and in return, you get that exclusive
right to profit from it.
Without that right, it kinda defeats thepurpose.Exactly.
For two centuries, courts treated thatright seriously.
Once they found infringement, the generalresponse was to stop the infringement.
Period.Because, back then, theyunderstood that damages just...
(04:58):
weren't enough.
I mean, how can you accurately measurethe value of someone's future market
share?
Or the opportunity cost of an inventionbeing used without permission?You can't.
And that's why injunctions were the go-toremedy.
Patent owners could stop unauthorized useand protect the value of their work.
But then, in 2006, the Supreme Courtdecided _eBay v.
(05:23):
MercExchange_...
and everything changed.Right.
The Court introduced that four-factortest-a balancing act, they called it.
But really, it put the burden of proofsquarely on the patent owner to show why
money couldn't solve the problem.Andsuddenly, you've got universities,
research institutions, startups-peoplewho aren't manufacturing products, but
(05:45):
rely on licensing revenue-essentiallygetting the short end of the stick.
They can't meet that new threshold aseasily as big corporations can.Exactly.
I actually used _eBay_ as a case study inone of my classes last semester.
We had this fascinating debate aboutwhether the decision prioritized
efficiency over fairness-or just createda loophole for bad behavior.Let me
(06:08):
guess-the bad behavior side won?Not evenclose.
The class overwhelmingly thought thedecision opened the door for what we call
"predatory infringement." Imagine being asmall startup with a game-changing
invention, only to watch a bigcorporation copy it and drag you through
years of litigation, knowing they'll justpay a royalty at the end.Yeah, it's
blatant.
The math favors the infringer.
(06:30):
Why negotiate a license upfront when youcan infringe, make money, and settle for
a fraction of the profits?And the databacks it up.
Post-_eBay_, requests for permanentinjunctions by non-practicing entities
like universities and research labsdropped by, what, eighty-five
percent?Closer to ninety, actually.
And for those who manufacture products,the drop was still shocking-around
(06:54):
sixty-five percent.
It's clear _eBay_ crippled the verymechanism meant to protect smaller
players.Not to mention the chillingeffect on innovation.
If startups can't enforce their patents,who's going to invest in them?
Venture capitalists see the uncertaintyand move their money elsewhere.And that's
the irony, isn't it?
Patent law is supposed to promoteinnovation, but after _eBay_, it's done
(07:19):
the opposite for so many inventors whodon't have the resources to fight
back.Which circles back to why thehistorical context is so important.
For two centuries, the right to excludewas the norm.
Injunctions weren't questioned, they wereexpected.
They gave inventors the confidence toinvest in their ideas.And now, with the
RESTORE Act, we're looking at restoringthat confidence.
(07:42):
But first, we need to understand whatit's proposing, and why it works.Building
on that, the RESTORE Act aims to addressthese challenges directly.
One of its central proposals is thereinstatement of a rebuttable presumption
for permanent injunctions after finaljudgment.
It might sound straightforward on paper,but in practice, it's a pivotal step
(08:04):
toward rebalancing the scales for smallerplayers.Huge deal.
This single shift, putting the burdenback on infringers to prove why an
injunction shouldn't be granted,completely realigns patent law with what
it was intended to do-protectinventors.And it really goes back to
fairness, right?
If the court decides someone infringed ona valid patent, they shouldn't get to
(08:27):
keep using it unless there's a verycompelling reason.
Otherwise, it undermines the whole notionof exclusivity.Exactly.
The Act doesn't eliminate judicialdiscretion, but it restores a baseline
expectation (08:39):
If you're infringing, the default remedy isn't just a monetary
penalty-it's stopping the infringementaltogether.
Without that, you're basicallyencouraging bad behavior.Which is exactly
what we've seen post-_eBay_.
That whole "infringe now, settle later"strategy has been rampant.
(08:59):
And honestly, for small players likestartups or universities, it's been
devastating.Right.
Take this tech startup I worked with awhile back.
They'd developed this groundbreakingwireless charging technology-truly
game-changing stuff.
But a major competitor swooped in, copiedtheir invention, and kept selling it.
(09:20):
And when the startup tried to enforcetheir patent, guess what happened?Let me
guess.
They got tied up in years of litigationwhile the infringer profited from their
work.You got it.
The big guy knew they couldn't beimmediately stopped because that
injunction just wasn't guaranteed anymore.
They dragged out the case, banking on asettlement or small damages down the
(09:41):
line.And in the meantime, the startupeither loses market share or has to
settle for peanuts compared to what thetech might really be worth.
It's the exact scenario the RESTORE Actis designed to prevent.Right.
Because when injunctions are back on thetable, it forces infringers to think
twice.
They have more incentive to negotiateupfront, which is what licensing is
(10:03):
supposed to be about in the firstplace.And it's not just about
fairness-it's about efficiency too.
If injunctions are the likely outcome,companies will avoid drawn-out litigation
wherever possible.
Earlier settlements, lower costs-everyonewins.Well, except for those who've been
gaming the system, of course.
But that's kinda the point.
The RESTORE Act levels the playing field,making it harder for big corporations to
(10:28):
bully smaller players into submission.Italso reaffirms the role of patents as
property rights.
I mean, you wouldn't let someone trespasson your land indefinitely just because
they paid damages afterward, wouldyou?Exactly.
By reinstating injunctions as the defaultremedy, the Act goes a long way toward
restoring the integrity of the system.
(10:48):
It's simple, it's logical, and it's longoverdue.Exactly-and that brings us to the
bigger picture.
Injunctions aren't just about fairness inindividual cases; they're rooted in the
very principles outlined in theConstitution.
So, let's dive into why they're socritical to justice in the patent
(11:09):
world.Exactly.
The Constitution explicitly grantsinventors the "exclusive right" to their
discoveries.
And that exclusivity isn't justsymbolic-it's a functional mechanism to
foster innovation.Right.
If courts can't stop ongoinginfringement, it's like saying, "Sure,
you can own your invention, but you don'treally get to control it." It's the
(11:31):
equivalent of turning patents intocompulsory licenses.Which isn't just
frustrating for inventors-it's alsopotentially unconstitutional.
Some scholars even argue thatsystematically denying injunctions could
violate the Fifth Amendment's TakingsClause.That's bold but not far-fetched.
Look, from an equity perspective, thinkabout the personal investment of
(11:52):
inventors-research, time, resources.
A royalty can't always make up for theirreparable harm caused when someone else
exploits their invention.Exactly!
And this is especially true foruniversities and startups.
Many of them rely on patents to securefunding or licensing revenue.
Without a reliable way to stop theft,it's a huge blow to their confidence-and
(12:14):
their wallets.And the harm isn't justfinancial.
In high-tech industries, ongoinginfringement can obliterate market
opportunities.
Competitors keep gaining ground, whilethe inventor watches helplessly.Which
brings us to the practical need forinjunctions.
Damages work for past harm, sure, but toprevent future harm, you need something
(12:35):
stronger.
You need a legal stop sign.Yeah,otherwise, you risk permanently
undercutting the very system that'ssupposed to protect innovation.
And without that, why would anyone investin developing groundbreaking ideas?They
wouldn't.
The stakes are too high.
Injunctions are what make patent rightsmeaningful.
Without them, it's like giving someone acar, but taking away the keys.And that's
(12:57):
the bottom line here.
This isn't just a legal technicality.
It's about making sure patents work theway they were designed to-by giving
inventors true control over theircreations.Looking at this bigger picture,
it's clear-we've spoken about whyinjunctions are vital, but the _eBay_
decision didn't just weaken their role inpatent disputes.
(13:20):
It set off a chain reaction of changesthat ripple far beyond patent law
itself.Totally.
One of the biggest issues?
Refusal to settle.
Infringers, especially the big ones,suddenly had no reason to negotiate fair
licenses upfront.
Why would they, when they can gamble onlitigation instead?Exactly.
(13:40):
And here's the kicker-dragging out casesoften costs less than paying a
market-value license would have.
So they figure, why not take theirchances in court?And it's not just about
cost either.
By extending the legal process, thesecompanies get to keep using the
technology the whole time.
It's basically free R for them while theclock ticks.Exactly.
(14:04):
And for smaller players-your startups,universities-years of legal
back-and-forth?
It's devastating.
They don't have the resources to keep upwith that kind of war of attrition.You
know, I saw this first-hand with auniversity I worked with a few years ago.
Their patent portfolio was their lifelinefor funding future research, but when a
major tech giant infringed, the courtbattles dragged on for-get this-seven
(14:27):
years.Seven years?
That's just...
ugh.
I mean, at that point, any settlementthey get hardly feels like a win.Exactly.
By the time the case wrapped up, the techwas obsolete, and they'd spent millions
on litigation.
It was a textbook example of judicialinefficiency.Yeah, and judicial
inefficiency is a whole other can ofworms here.
(14:49):
Without injunctions, courts are stuckmanaging these sprawling lawsuits.
More motions, more discovery-it all addsup, and the courts themselves pay the
price.Right.
And the wasted resources?
It compounds the chilling effect this hason inventors.
Who's gonna take the risk to innovatewhen the rewards are this
uncertain?They're not.
(15:09):
Especially startups.
Venture capitalists see this landscapeand think, "Why bother investing in an
idea that a bigger competitor can justrip off?"Exactly!
To them, a patent without enforcement isbasically worthless.
And for independent inventors, it's evenworse-they don't even have universities
or firms to back them up.Which brings usto the ripple effects beyond just
(15:32):
individuals.
When innovation stalls here, the ripplehits the broader economy-and geopolitics
too.Yeah, especially in industries likeAI, biotech, quantum computing.
Those are fields where the United Statescan't really afford to fall behind.
But without strong protections, we risklosing that edge.To jurisdictions with
(15:52):
stricter patent enforcement, right?
Like Germany-they've got robustpresumptions for injunctions.
And their innovation sectors arethriving.Exactly.
It's ironic, isn't it?
The U.S.
has long been the gold standard for IPprotection...
but post-_eBay_, we're kinda chippingaway at that reputation.And that's the
takeaway here-_eBay_ didn't just weaken alegal remedy.
(16:15):
It shifted an entire ecosystem intoimbalance.Considering how this imbalance
impacts the legal ecosystem andinnovation as a whole, there's another
dimension we need to discuss-theconstitutional implications of denying
injunctions.
For inventors, it's not just aboutfairness-it might even cross into
(16:37):
unconstitutional territory.Right.
At its core, the Constitution grantsinventors an "exclusive right" to their
creations.
Without the ability to enforce thatexclusivity through an injunction, well,
you're essentially stripping them of thatright.Some call it a taking.
You've got patent owners investingthousands, sometimes millions, of dollars
(16:58):
into developing something--and thenhaving courts turn around and say, "Oh,
sorry, you can't stop someone else fromusing it."Exactly.
It's all carrot, no stick, which runscompletely counter to the whole point of
the patent system-to reward innovation bygiving inventors meaningful control over
their work.And this is where the FifthAmendment's Takings Clause might come
(17:21):
into play.
When the government-or in this case, thecourts-essentially forces a patent owner
to allow unauthorized use, is that a"taking" of private property for public
use?Some legal scholars argue that it is,and honestly, they have a point.
Without court-enforced exclusivity,patents are reduced to, what, just
another paper promise?A paper promise,exactly.
(17:44):
And let's not forget-the injunctionmechanism isn't just about giving
inventors rights.
It prevents others from, well,trespassing on those rights.
It's no different than a property ownerputting up a fence.Right.
And what's crazy is patent law was builton the idea that this exclusivity is
sacrosanct.
For over two centuries, injunctionsweren't even questioned.
(18:07):
They were the default remedy forinfringement.Which brings us to Congress.
They have the specific authority to stepin and clarify what these remedies should
look like.
The RESTORE Act, for example-it's theirway of saying, "Let's get back to
basics."Exactly.
It's about rebalancing the scales,ensuring that the system works the way it
was intended to.
(18:28):
And Congress couldn't be clearer.
If the courts won't consistently protectthe right to exclude, then the
legislature has to do it for them.So,building on that, let's dive into how the
RESTORE Act directly addresses theseimbalances Congress is targeting.
First up (18:45):
how it recalibrates the scales for all stakeholders.
Angela, wouldn't you say one of itsstrengths is how it elegantly shifts the
burden of proof?Absolutely.
By reinstating the presumption of aninjunction, it ensures that patent
owners-especially smaller players likestartups and universities-aren't left
(19:05):
scrambling to prove irreparable harm.
It shifts the playing field back tofairness.Right, because the system
post-_eBay_ favored large corporations.
The RESTORE Act effectively says, "Nomore free rides if you've been found
guilty of infringement." It forcesinfringers to provide a compelling reason
(19:25):
why they shouldn't face aninjunction.Mm-hmm.
And by doing that, it brings patent lawback in line with other property rights.
Think about real estate-if someonetrespasses on your land, the default
remedy is to stop the trespass, not justpay damages.
Why should patents be anydifferent?Exactly.
And that ties into another huge benefit: efficiency. (19:43):
undefined
When injunctions are back on the table,infringers are way more likely to
negotiate upfront, rather than draggingthings out in court.Right.
And that means earlier settlements, lesscrowded court dockets, and lower
litigation costs for everyone involved.
(20:03):
It's a win-win-well, unless you're theone benefiting from dragging things out,
of course.Which, let's be honest, weremostly the big players who could afford
endless litigation.
The Act levels the field, giving smallerinventors and institutions a fair shot at
enforcing their rights.And it does allthis while reaffirming the Constitution's
promise of exclusivity.
(20:24):
Remember, the right to exclude isfoundational-without it, the entire
structure of the patent system kindafalls apart.Exactly.
And frankly, the RESTORE Act is justreturning the system to its historical
norms.
For over two centuries, injunctions werethe default remedy.
This Act simply reinforces that traditionin a way that's practical and fair.But it
(20:48):
does leave room for exceptions.
The presumption is rebuttable, so courtsstill have discretion to deny injunctions
in rare cases where there's a trulycompelling reason.And that's key.
It's not a blunt instrument; it's acarefully balanced fix that addresses the
inequities introduced by _eBay_, restorestrust in the system, and incentivizes
(21:09):
good behavior.So, we've covered how theRESTORE Act brings balance and fairness
back to the patent system, but like anymajor reform, it's not without its
critics.
Angela, what's your take on the mostcommon concern we hear?Oh, you mean the
good old "patent trolls" argument?
It's the classic line-critics claim theAct will give non-practicing entities a
(21:31):
loaded weapon to demand excessivesettlements.
But honestly, it doesn't hold up underscrutiny.Exactly.
Because here's the thing (21:38):
the RESTORE Act only kicks in after a final judgment of
infringement on a valid patent.
We're not talking about preliminaryorders or early-stage cases.Right-so by
the time an injunction is even on thetable, the court has already determined
that the infringer was in the wrong.
That's a world away from frivolous claimsor nuisance lawsuits.Exactly.
(22:02):
And let's not forget-courts still havediscretion.
The presumption of an injunction isrebuttable, so in the rare case where
granting one would be genuinely unfair orimpractical, judges can deny it.Mm-hmm.
So it's not some blanket win for "patenttrolls." If anything, it's a much-needed
(22:23):
recalibration to deter predatoryinfringement.
And frankly, that argument feels like adistraction from the real issues.Totally
agree.
Alright, let's take on the next one-priceincreases for consumers.
Critics say the Act could lead to moreexpensive products because companies
might face stricter injunctions.
(22:45):
What's our counter?Well, Erick, inpractice, companies don't just sit back
and watch products get pulled fromshelves.
When faced with an injunction, theytypically negotiate a license to keep
selling their products.
Consumers still get access, and inventorsget fairly compensated.Exactly.
So it's not about removing products-it'sabout making sure patent owners aren't
(23:05):
left out in the cold.
If a company knows it'll lose accesswithout a license, they're more likely to
negotiate from the start.Right.
And let's not pretend stronger patentenforcement leads to massive price hikes.
Licensing agreements are a small fractionof overall costs for most products.
It's just not as dramatic as critics makeit sound.No, it's not.
(23:25):
Besides, what's the alternative?
Stalling innovation by letting companiesrip off inventions indefinitely?
That's a price nobody should be willingto pay.Exactly-and that's the irony,
isn't it?
Weak enforcement doesn't drive pricesdown; it drives innovators out.
If startups and universities can'tenforce their patents, the ripple effects
(23:48):
hurt everyone in the long run.Spot on.
Now, the last one worthaddressing-international retaliation.
Critics say reinstating injunctions couldput the U.S.
at odds with our trading partners.
Thoughts?Honestly?
That argument feels overblown.
Many of our biggest tradingpartners-Germany, for example-already
(24:09):
have strong enforcement mechanisms.
If anything, this brings us back in linewith global norms.Exactly.
And historically, strong intellectualproperty enforcement has been a
competitive advantage for the U.S.
It's what attracts foreign innovators topatent their technology here in the first
place.Right.
Plus, think about industries like biotechand AI where the U.S.
(24:30):
leads.
Holding those patents to a highenforcement standard isn't just about
fairness-it's about maintaining thatleadership position globally.Couldn't
agree more.
When we improve enforcement at home, itonly strengthens our standing
internationally.
So, those retaliation concerns?
Not exactly persuasive.So, Angela,following up on where we left off-let's
(24:54):
delve deeper into the recurringcriticisms of the RESTORE Act.
How about starting with the one thatseems to grab the most attention?Sure.
Critics love to point to the "patenttroll" argument.
You know, this idea that the Act willempower non-practicing entities to extort
settlements by threatening injunctions.
But honestly, that criticism doesn'treally hold up.Yeah, because this Act
(25:18):
only applies after a final judgment ofinfringement.
We're not talking about preliminaryinjunctions or speculative claims.
By the time an injunction's on the table,the court's already ruled in favor of the
patent owner.Exactly.
Plus, even after that final judgment, thepresumption is rebuttable.
Courts can still deny injunctions inexceptional cases where it's truly
(25:41):
unwarranted.
It's not some free pass for badactors.Right.
So, the whole patent troll narrative?
It's a little overblown here.
Alright, let's take another one (25:49):
the concern that stronger injunctions mean
higher costs for consumers.
What's the counter on that?Well, inreality, companies don't just stand by
and let products disappear from shelves.
They negotiate licenses to keep selling.
Consumers still get access to theproducts they need, and the inventor gets
fairly compensated.
(26:10):
It's not the doom-and-gloom scenariocritics make it out to be.Right.
And licensing fees are typically afraction of production costs.
They're not gonna cause massive pricehikes.
It's just another scare tactic todistract from the actual benefits of the
Act.Exactly.
And let's think big picture.
Weak enforcement doesn't lower costs-itundermines innovation.
(26:31):
Startups and universities can't thrive ina system where patents aren't protected.
And in the end, the whole economy paysthe price.Totally.
Now, what about international retaliation?
You think that one holds water?Not really.
I mean, look at Germany.
They've got strong patent enforcement,and their innovation sectors are thriving.
If anything, the RESTORE Act realigns uswith global standards.Exactly.
(26:56):
And the U.S.
has always been a magnet for innovatorsbecause of our strong IP protections.
Restoring that strength just reinforcesour leadership in fields like AI and
biotech.Right.
The constitutional aspect reinforces thattoo.
The RESTORE Act strengthens thefoundational promise of exclusivity,
which is key to encouraging investment ingroundbreaking ideas.And without that
(27:20):
confidence, innovation dries up.
It's that simple.So, Angela, thinkingback to where we left off-it's
interesting how the RESTORE Act alignswith global standards and reinforces our
innovation leadership.
From that perspective, we've reallycovered a lot today, spanning its
(27:40):
origins, practical fixes, and even thecriticisms.
There's obviously a monumental shift atstake here.Absolutely.
And at its core, the RESTORE Act reallybrings patent law back to what it was
meant to do-give inventors meaningfulprotection for their innovations.
With the presumption of injunctionsrestored, it sends a clear message: the
(28:00):
right to exclude matters.Exactly.
And restoring that right, for me, itfeels overdue.
You can't foster innovation if the systemlets bad actors game it.
Inventors need to know their work won'tjust be poached without recourse.And it's
not just important for the individualinventors-though, of course, that's
(28:21):
critical-but also for the broaderinnovation ecosystem.
Strong protections mean confidence forstartups, universities, and all the
stakeholders betting on groundbreakingideas.Right.
And let's not forget-it's about fairnesstoo.
If someone infringes on your patent, youshouldn't be stuck begging for damages
when you've already won in court.Exactly.
(28:44):
The RESTORE Act reestablishes thatbalance, reminding both courts and
infringers that patents aren't justrubber stamps; they're lifelines for
innovation and economic growth.Plus,there's something so logical about it.
It doesn't rewrite everything-it's atargeted fix that restores confidence in
a system that's supposed to rewardingenuity.Right.
(29:04):
And it has ripple effects acrossindustries-from AI to biotech, even
national security.
Countries that protect innovation leadthe way in the global economy.
That's been the U.S.'s story forgenerations, and I think the RESTORE Act
helps us keep it that way.Couldn't agreemore.
With stronger patents, you build strongerincentives for everyone-from garage
(29:26):
inventors to Fortune 500 companies.
And frankly, it's about time lawmakersstepped in to tighten the screws on a
system that's been too loose for toolong.Right.
And that final takeaway?
It's simple (29:40):
If patents aren't enforceable, why would anyone invest in
inventing the next big thing?
The RESTORE Act is putting those keysback in the hands of innovators.And on
that note, I think we've wrapped it up.
As always, it's been great hashing thisout with you, Angela.Same here, Erick.
Always a pleasure talking patents andinnovation.Alright folks, that's all for
(30:01):
today.
Thanks for tuning in, and we'll catch younext time.
Welcome to the first episode of thePatent Litigation Podcast, where we talk
about the intricate world of patentdisputes, providing insight and
interesting viewpoints on legalstrategies, landmark cases, and industry
trends.
We and industry experts share practicalwisdom on every phase of patent
(01:17):
litigation.
From pre-filing considerations topost-trial remedies, we deliver valuable
perspectives for attorneys, in-housecounsel, inventors, and business leaders.
As always, the views and opinionsexpressed in this podcast do not
necessarily represent those of BrownRudnick.
(01:39):
This podcast is presented forinformational and educational purposes
only.
Today, I am here with my friend andpatent litigator extraordinaire, law
school professor Dr.
Angela Liu.
Thanks for joining me today, Dr.
LiuPlease Erick!
We are friends -- call me Angela!Alright,Angela let's dive right in.
(02:01):
Today, we're talking about the RESTOREPatent Rights Act of 2025.
A bill that's, well, in many ways, bothstraightforward and transformative.
It's one of those legislative effortsaimed at fixing what some might call
a-ah, shall we say-a critical flaw in ourpatent system.Yeah, and when you say
(02:22):
'critical flaw,' you're talking abouthow, since 2006, patent owners haven't
been able to rely on getting a permanentinjunction when their patents are
infringed.
Essentially, courts started saying, "Showus why money isn't good enough."Exactly.
And that's a big shift.
Look, patents are supposed to giveinventors the right to exclude others
from using their invention.
(02:43):
But if you can't stop someone--thenwhat's the point of having a patent,
right?Right.
It's like saying you own a house, butanyone can live in it as long as they pay
you rent after a court battle.
That's where the RESTORE Act comesin.Mm-hmm.
So, the bill proposes a simple fix.
Once a court decides that someone hasinfringed a valid patent, the patent
(03:07):
owner gets a rebuttable presumption of apermanent injunction."Rebuttable
presumption" being the key phrase here.
It means the default position is, "Yes,the patent owner deserves an injunction."
But if the infringer can prove there's acompelling reason not to grant one, they
can rebut that presumption.So, it's notautomatic.
(03:29):
Courts still have discretion, but itflips the burden back to the infringer,
which is-well, it's how the system workedfor, what, two hundred years before
2006?Exactly.
And the beauty of the Act is itssimplicity.
It doesn't rewrite patent law; it justrestores what used to be an assumed
remedy when someone infringed yourpatent.And the reasoning behind it is
(03:53):
pretty hard to argue with.
If someone has been found guilty ofinfringement after a final judgment, why
should they get to keep using theinvention unless there's a really good
reason?Yeah, the Act essentially says,"Let's make patents meaningful again."
And it cuts down on the "infringe now,pay later" mindset that's been plaguing
(04:13):
the system for years.You know, it'sreally fascinating how this debate over
injunctions isn't just about modernlegislation-it's deeply tied to the core
purpose of patents.
I mean, the right to exclude others iswhat gives the entire system its
constitutional backbone.Right, it's thewhole point of the patent "bargain." You
(04:35):
disclose your invention to the public,and in return, you get that exclusive
right to profit from it.
Without that right, it kinda defeats thepurpose.Exactly.
For two centuries, courts treated thatright seriously.
Once they found infringement, the generalresponse was to stop the infringement.
Period.Because, back then, theyunderstood that damages just...
(04:58):
weren't enough.
I mean, how can you accurately measurethe value of someone's future market
share?
Or the opportunity cost of an inventionbeing used without permission?You can't.
And that's why injunctions were the go-toremedy.
Patent owners could stop unauthorized useand protect the value of their work.
But then, in 2006, the Supreme Courtdecided _eBay v.
(05:23):
MercExchange_...
and everything changed.Right.
The Court introduced that four-factortest-a balancing act, they called it.
But really, it put the burden of proofsquarely on the patent owner to show why
money couldn't solve the problem.Andsuddenly, you've got universities,
research institutions, startups-peoplewho aren't manufacturing products, but
(05:45):
rely on licensing revenue-essentiallygetting the short end of the stick.
They can't meet that new threshold aseasily as big corporations can.Exactly.
I actually used _eBay_ as a case study inone of my classes last semester.
We had this fascinating debate aboutwhether the decision prioritized
efficiency over fairness-or just createda loophole for bad behavior.Let me
(06:08):
guess-the bad behavior side won?Not evenclose.
The class overwhelmingly thought thedecision opened the door for what we call
"predatory infringement." Imagine being asmall startup with a game-changing
invention, only to watch a bigcorporation copy it and drag you through
years of litigation, knowing they'll justpay a royalty at the end.Yeah, it's
blatant.
The math favors the infringer.
(06:30):
Why negotiate a license upfront when youcan infringe, make money, and settle for
a fraction of the profits?And the databacks it up.
Post-_eBay_, requests for permanentinjunctions by non-practicing entities
like universities and research labsdropped by, what, eighty-five
percent?Closer to ninety, actually.
And for those who manufacture products,the drop was still shocking-around
(06:54):
sixty-five percent.
It's clear _eBay_ crippled the verymechanism meant to protect smaller
players.Not to mention the chillingeffect on innovation.
If startups can't enforce their patents,who's going to invest in them?
Venture capitalists see the uncertaintyand move their money elsewhere.And that's
the irony, isn't it?
Patent law is supposed to promoteinnovation, but after _eBay_, it's done
(07:19):
the opposite for so many inventors whodon't have the resources to fight
back.Which circles back to why thehistorical context is so important.
For two centuries, the right to excludewas the norm.
Injunctions weren't questioned, they wereexpected.
They gave inventors the confidence toinvest in their ideas.And now, with the
RESTORE Act, we're looking at restoringthat confidence.
(07:42):
But first, we need to understand whatit's proposing, and why it works.Building
on that, the RESTORE Act aims to addressthese challenges directly.
One of its central proposals is thereinstatement of a rebuttable presumption
for permanent injunctions after finaljudgment.
It might sound straightforward on paper,but in practice, it's a pivotal step
(08:04):
toward rebalancing the scales for smallerplayers.Huge deal.
This single shift, putting the burdenback on infringers to prove why an
injunction shouldn't be granted,completely realigns patent law with what
it was intended to do-protectinventors.And it really goes back to
fairness, right?
If the court decides someone infringed ona valid patent, they shouldn't get to
(08:27):
keep using it unless there's a verycompelling reason.
Otherwise, it undermines the whole notionof exclusivity.Exactly.
The Act doesn't eliminate judicialdiscretion, but it restores a baseline
expectation (08:39):
If you're infringing, the default remedy isn't just a monetary
penalty-it's stopping the infringementaltogether.
Without that, you're basicallyencouraging bad behavior.Which is exactly
what we've seen post-_eBay_.
That whole "infringe now, settle later"strategy has been rampant.
(08:59):
And honestly, for small players likestartups or universities, it's been
devastating.Right.
Take this tech startup I worked with awhile back.
They'd developed this groundbreakingwireless charging technology-truly
game-changing stuff.
But a major competitor swooped in, copiedtheir invention, and kept selling it.
(09:20):
And when the startup tried to enforcetheir patent, guess what happened?Let me
guess.
They got tied up in years of litigationwhile the infringer profited from their
work.You got it.
The big guy knew they couldn't beimmediately stopped because that
injunction just wasn't guaranteed anymore.
They dragged out the case, banking on asettlement or small damages down the
(09:41):
line.And in the meantime, the startupeither loses market share or has to
settle for peanuts compared to what thetech might really be worth.
It's the exact scenario the RESTORE Actis designed to prevent.Right.
Because when injunctions are back on thetable, it forces infringers to think
twice.
They have more incentive to negotiateupfront, which is what licensing is
(10:03):
supposed to be about in the firstplace.And it's not just about
fairness-it's about efficiency too.
If injunctions are the likely outcome,companies will avoid drawn-out litigation
wherever possible.
Earlier settlements, lower costs-everyonewins.Well, except for those who've been
gaming the system, of course.
But that's kinda the point.
The RESTORE Act levels the playing field,making it harder for big corporations to
(10:28):
bully smaller players into submission.Italso reaffirms the role of patents as
property rights.
I mean, you wouldn't let someone trespasson your land indefinitely just because
they paid damages afterward, wouldyou?Exactly.
By reinstating injunctions as the defaultremedy, the Act goes a long way toward
restoring the integrity of the system.
(10:48):
It's simple, it's logical, and it's longoverdue.Exactly-and that brings us to the
bigger picture.
Injunctions aren't just about fairness inindividual cases; they're rooted in the
very principles outlined in theConstitution.
So, let's dive into why they're socritical to justice in the patent
(11:09):
world.Exactly.
The Constitution explicitly grantsinventors the "exclusive right" to their
discoveries.
And that exclusivity isn't justsymbolic-it's a functional mechanism to
foster innovation.Right.
If courts can't stop ongoinginfringement, it's like saying, "Sure,
you can own your invention, but you don'treally get to control it." It's the
(11:31):
equivalent of turning patents intocompulsory licenses.Which isn't just
frustrating for inventors-it's alsopotentially unconstitutional.
Some scholars even argue thatsystematically denying injunctions could
violate the Fifth Amendment's TakingsClause.That's bold but not far-fetched.
Look, from an equity perspective, thinkabout the personal investment of
(11:52):
inventors-research, time, resources.
A royalty can't always make up for theirreparable harm caused when someone else
exploits their invention.Exactly!
And this is especially true foruniversities and startups.
Many of them rely on patents to securefunding or licensing revenue.
Without a reliable way to stop theft,it's a huge blow to their confidence-and
(12:14):
their wallets.And the harm isn't justfinancial.
In high-tech industries, ongoinginfringement can obliterate market
opportunities.
Competitors keep gaining ground, whilethe inventor watches helplessly.Which
brings us to the practical need forinjunctions.
Damages work for past harm, sure, but toprevent future harm, you need something
(12:35):
stronger.
You need a legal stop sign.Yeah,otherwise, you risk permanently
undercutting the very system that'ssupposed to protect innovation.
And without that, why would anyone investin developing groundbreaking ideas?They
wouldn't.
The stakes are too high.
Injunctions are what make patent rightsmeaningful.
Without them, it's like giving someone acar, but taking away the keys.And that's
(12:57):
the bottom line here.
This isn't just a legal technicality.
It's about making sure patents work theway they were designed to-by giving
inventors true control over theircreations.Looking at this bigger picture,
it's clear-we've spoken about whyinjunctions are vital, but the _eBay_
decision didn't just weaken their role inpatent disputes.
(13:20):
It set off a chain reaction of changesthat ripple far beyond patent law
itself.Totally.
One of the biggest issues?
Refusal to settle.
Infringers, especially the big ones,suddenly had no reason to negotiate fair
licenses upfront.
Why would they, when they can gamble onlitigation instead?Exactly.
(13:40):
And here's the kicker-dragging out casesoften costs less than paying a
market-value license would have.
So they figure, why not take theirchances in court?And it's not just about
cost either.
By extending the legal process, thesecompanies get to keep using the
technology the whole time.
It's basically free R for them while theclock ticks.Exactly.
(14:04):
And for smaller players-your startups,universities-years of legal
back-and-forth?
It's devastating.
They don't have the resources to keep upwith that kind of war of attrition.You
know, I saw this first-hand with auniversity I worked with a few years ago.
Their patent portfolio was their lifelinefor funding future research, but when a
major tech giant infringed, the courtbattles dragged on for-get this-seven
(14:27):
years.Seven years?
That's just...
ugh.
I mean, at that point, any settlementthey get hardly feels like a win.Exactly.
By the time the case wrapped up, the techwas obsolete, and they'd spent millions
on litigation.
It was a textbook example of judicialinefficiency.Yeah, and judicial
inefficiency is a whole other can ofworms here.
(14:49):
Without injunctions, courts are stuckmanaging these sprawling lawsuits.
More motions, more discovery-it all addsup, and the courts themselves pay the
price.Right.
And the wasted resources?
It compounds the chilling effect this hason inventors.
Who's gonna take the risk to innovatewhen the rewards are this
uncertain?They're not.
(15:09):
Especially startups.
Venture capitalists see this landscapeand think, "Why bother investing in an
idea that a bigger competitor can justrip off?"Exactly!
To them, a patent without enforcement isbasically worthless.
And for independent inventors, it's evenworse-they don't even have universities
or firms to back them up.Which brings usto the ripple effects beyond just
(15:32):
individuals.
When innovation stalls here, the ripplehits the broader economy-and geopolitics
too.Yeah, especially in industries likeAI, biotech, quantum computing.
Those are fields where the United Statescan't really afford to fall behind.
But without strong protections, we risklosing that edge.To jurisdictions with
(15:52):
stricter patent enforcement, right?
Like Germany-they've got robustpresumptions for injunctions.
And their innovation sectors arethriving.Exactly.
It's ironic, isn't it?
The U.S.
has long been the gold standard for IPprotection...
but post-_eBay_, we're kinda chippingaway at that reputation.And that's the
takeaway here-_eBay_ didn't just weaken alegal remedy.
(16:15):
It shifted an entire ecosystem intoimbalance.Considering how this imbalance
impacts the legal ecosystem andinnovation as a whole, there's another
dimension we need to discuss-theconstitutional implications of denying
injunctions.
For inventors, it's not just aboutfairness-it might even cross into
(16:37):
unconstitutional territory.Right.
At its core, the Constitution grantsinventors an "exclusive right" to their
creations.
Without the ability to enforce thatexclusivity through an injunction, well,
you're essentially stripping them of thatright.Some call it a taking.
You've got patent owners investingthousands, sometimes millions, of dollars
(16:58):
into developing something--and thenhaving courts turn around and say, "Oh,
sorry, you can't stop someone else fromusing it."Exactly.
It's all carrot, no stick, which runscompletely counter to the whole point of
the patent system-to reward innovation bygiving inventors meaningful control over
their work.And this is where the FifthAmendment's Takings Clause might come
(17:21):
into play.
When the government-or in this case, thecourts-essentially forces a patent owner
to allow unauthorized use, is that a"taking" of private property for public
use?Some legal scholars argue that it is,and honestly, they have a point.
Without court-enforced exclusivity,patents are reduced to, what, just
another paper promise?A paper promise,exactly.
(17:44):
And let's not forget-the injunctionmechanism isn't just about giving
inventors rights.
It prevents others from, well,trespassing on those rights.
It's no different than a property ownerputting up a fence.Right.
And what's crazy is patent law was builton the idea that this exclusivity is
sacrosanct.
For over two centuries, injunctionsweren't even questioned.
(18:07):
They were the default remedy forinfringement.Which brings us to Congress.
They have the specific authority to stepin and clarify what these remedies should
look like.
The RESTORE Act, for example-it's theirway of saying, "Let's get back to
basics."Exactly.
It's about rebalancing the scales,ensuring that the system works the way it
was intended to.
(18:28):
And Congress couldn't be clearer.
If the courts won't consistently protectthe right to exclude, then the
legislature has to do it for them.So,building on that, let's dive into how the
RESTORE Act directly addresses theseimbalances Congress is targeting.
First up (18:45):
how it recalibrates the scales for all stakeholders.
Angela, wouldn't you say one of itsstrengths is how it elegantly shifts the
burden of proof?Absolutely.
By reinstating the presumption of aninjunction, it ensures that patent
owners-especially smaller players likestartups and universities-aren't left
(19:05):
scrambling to prove irreparable harm.
It shifts the playing field back tofairness.Right, because the system
post-_eBay_ favored large corporations.
The RESTORE Act effectively says, "Nomore free rides if you've been found
guilty of infringement." It forcesinfringers to provide a compelling reason
(19:25):
why they shouldn't face aninjunction.Mm-hmm.
And by doing that, it brings patent lawback in line with other property rights.
Think about real estate-if someonetrespasses on your land, the default
remedy is to stop the trespass, not justpay damages.
Why should patents be anydifferent?Exactly.
And that ties into another huge benefit: efficiency. (19:43):
undefined
When injunctions are back on the table,infringers are way more likely to
negotiate upfront, rather than draggingthings out in court.Right.
And that means earlier settlements, lesscrowded court dockets, and lower
litigation costs for everyone involved.
(20:03):
It's a win-win-well, unless you're theone benefiting from dragging things out,
of course.Which, let's be honest, weremostly the big players who could afford
endless litigation.
The Act levels the field, giving smallerinventors and institutions a fair shot at
enforcing their rights.And it does allthis while reaffirming the Constitution's
promise of exclusivity.
(20:24):
Remember, the right to exclude isfoundational-without it, the entire
structure of the patent system kindafalls apart.Exactly.
And frankly, the RESTORE Act is justreturning the system to its historical
norms.
For over two centuries, injunctions werethe default remedy.
This Act simply reinforces that traditionin a way that's practical and fair.But it
(20:48):
does leave room for exceptions.
The presumption is rebuttable, so courtsstill have discretion to deny injunctions
in rare cases where there's a trulycompelling reason.And that's key.
It's not a blunt instrument; it's acarefully balanced fix that addresses the
inequities introduced by _eBay_, restorestrust in the system, and incentivizes
(21:09):
good behavior.So, we've covered how theRESTORE Act brings balance and fairness
back to the patent system, but like anymajor reform, it's not without its
critics.
Angela, what's your take on the mostcommon concern we hear?Oh, you mean the
good old "patent trolls" argument?
It's the classic line-critics claim theAct will give non-practicing entities a
(21:31):
loaded weapon to demand excessivesettlements.
But honestly, it doesn't hold up underscrutiny.Exactly.
Because here's the thing (21:38):
the RESTORE Act only kicks in after a final judgment of
infringement on a valid patent.
We're not talking about preliminaryorders or early-stage cases.Right-so by
the time an injunction is even on thetable, the court has already determined
that the infringer was in the wrong.
That's a world away from frivolous claimsor nuisance lawsuits.Exactly.
(22:02):
And let's not forget-courts still havediscretion.
The presumption of an injunction isrebuttable, so in the rare case where
granting one would be genuinely unfair orimpractical, judges can deny it.Mm-hmm.
So it's not some blanket win for "patenttrolls." If anything, it's a much-needed
(22:23):
recalibration to deter predatoryinfringement.
And frankly, that argument feels like adistraction from the real issues.Totally
agree.
Alright, let's take on the next one-priceincreases for consumers.
Critics say the Act could lead to moreexpensive products because companies
might face stricter injunctions.
(22:45):
What's our counter?Well, Erick, inpractice, companies don't just sit back
and watch products get pulled fromshelves.
When faced with an injunction, theytypically negotiate a license to keep
selling their products.
Consumers still get access, and inventorsget fairly compensated.Exactly.
So it's not about removing products-it'sabout making sure patent owners aren't
(23:05):
left out in the cold.
If a company knows it'll lose accesswithout a license, they're more likely to
negotiate from the start.Right.
And let's not pretend stronger patentenforcement leads to massive price hikes.
Licensing agreements are a small fractionof overall costs for most products.
It's just not as dramatic as critics makeit sound.No, it's not.
(23:25):
Besides, what's the alternative?
Stalling innovation by letting companiesrip off inventions indefinitely?
That's a price nobody should be willingto pay.Exactly-and that's the irony,
isn't it?
Weak enforcement doesn't drive pricesdown; it drives innovators out.
If startups and universities can'tenforce their patents, the ripple effects
(23:48):
hurt everyone in the long run.Spot on.
Now, the last one worthaddressing-international retaliation.
Critics say reinstating injunctions couldput the U.S.
at odds with our trading partners.
Thoughts?Honestly?
That argument feels overblown.
Many of our biggest tradingpartners-Germany, for example-already
(24:09):
have strong enforcement mechanisms.
If anything, this brings us back in linewith global norms.Exactly.
And historically, strong intellectualproperty enforcement has been a
competitive advantage for the U.S.
It's what attracts foreign innovators topatent their technology here in the first
place.Right.
Plus, think about industries like biotechand AI where the U.S.
(24:30):
leads.
Holding those patents to a highenforcement standard isn't just about
fairness-it's about maintaining thatleadership position globally.Couldn't
agree more.
When we improve enforcement at home, itonly strengthens our standing
internationally.
So, those retaliation concerns?
Not exactly persuasive.So, Angela,following up on where we left off-let's
(24:54):
delve deeper into the recurringcriticisms of the RESTORE Act.
How about starting with the one thatseems to grab the most attention?Sure.
Critics love to point to the "patenttroll" argument.
You know, this idea that the Act willempower non-practicing entities to extort
settlements by threatening injunctions.
But honestly, that criticism doesn'treally hold up.Yeah, because this Act
(25:18):
only applies after a final judgment ofinfringement.
We're not talking about preliminaryinjunctions or speculative claims.
By the time an injunction's on the table,the court's already ruled in favor of the
patent owner.Exactly.
Plus, even after that final judgment, thepresumption is rebuttable.
Courts can still deny injunctions inexceptional cases where it's truly
(25:41):
unwarranted.
It's not some free pass for badactors.Right.
So, the whole patent troll narrative?
It's a little overblown here.
Alright, let's take another one (25:49):
the concern that stronger injunctions mean
higher costs for consumers.
What's the counter on that?Well, inreality, companies don't just stand by
and let products disappear from shelves.
They negotiate licenses to keep selling.
Consumers still get access to theproducts they need, and the inventor gets
fairly compensated.
(26:10):
It's not the doom-and-gloom scenariocritics make it out to be.Right.
And licensing fees are typically afraction of production costs.
They're not gonna cause massive pricehikes.
It's just another scare tactic todistract from the actual benefits of the
Act.Exactly.
And let's think big picture.
Weak enforcement doesn't lower costs-itundermines innovation.
(26:31):
Startups and universities can't thrive ina system where patents aren't protected.
And in the end, the whole economy paysthe price.Totally.
Now, what about international retaliation?
You think that one holds water?Not really.
I mean, look at Germany.
They've got strong patent enforcement,and their innovation sectors are thriving.
If anything, the RESTORE Act realigns uswith global standards.Exactly.
(26:56):
And the U.S.
has always been a magnet for innovatorsbecause of our strong IP protections.
Restoring that strength just reinforcesour leadership in fields like AI and
biotech.Right.
The constitutional aspect reinforces thattoo.
The RESTORE Act strengthens thefoundational promise of exclusivity,
which is key to encouraging investment ingroundbreaking ideas.And without that
(27:20):
confidence, innovation dries up.
It's that simple.So, Angela, thinkingback to where we left off-it's
interesting how the RESTORE Act alignswith global standards and reinforces our
innovation leadership.
From that perspective, we've reallycovered a lot today, spanning its
(27:40):
origins, practical fixes, and even thecriticisms.
There's obviously a monumental shift atstake here.Absolutely.
And at its core, the RESTORE Act reallybrings patent law back to what it was
meant to do-give inventors meaningfulprotection for their innovations.
With the presumption of injunctionsrestored, it sends a clear message: the
(28:00):
right to exclude matters.Exactly.
And restoring that right, for me, itfeels overdue.
You can't foster innovation if the systemlets bad actors game it.
Inventors need to know their work won'tjust be poached without recourse.And it's
not just important for the individualinventors-though, of course, that's
(28:21):
critical-but also for the broaderinnovation ecosystem.
Strong protections mean confidence forstartups, universities, and all the
stakeholders betting on groundbreakingideas.Right.
And let's not forget-it's about fairnesstoo.
If someone infringes on your patent, youshouldn't be stuck begging for damages
when you've already won in court.Exactly.
(28:44):
The RESTORE Act reestablishes thatbalance, reminding both courts and
infringers that patents aren't justrubber stamps; they're lifelines for
innovation and economic growth.Plus,there's something so logical about it.
It doesn't rewrite everything-it's atargeted fix that restores confidence in
a system that's supposed to rewardingenuity.Right.
(29:04):
And it has ripple effects acrossindustries-from AI to biotech, even
national security.
Countries that protect innovation leadthe way in the global economy.
That's been the U.S.'s story forgenerations, and I think the RESTORE Act
helps us keep it that way.Couldn't agreemore.
With stronger patents, you build strongerincentives for everyone-from garage
(29:26):
inventors to Fortune 500 companies.
And frankly, it's about time lawmakersstepped in to tighten the screws on a
system that's been too loose for toolong.Right.
And that final takeaway?
It's simple (29:40):
If patents aren't enforceable, why would anyone invest in
inventing the next big thing?
The RESTORE Act is putting those keysback in the hands of innovators.And on
that note, I think we've wrapped it up.
As always, it's been great hashing thisout with you, Angela.Same here, Erick.
Always a pleasure talking patents andinnovation.Alright folks, that's all for
(30:01):
today.
Thanks for tuning in, and we'll catch younext time.
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