By Joshua Rich –

On February 27, 2026, the U.S. Patent and Trademark Office and Antitrust Division of the U.S. Department of Justice filed a “Statement of Interest” in Collision Communications, Inc. v. Samsung Electronics Co., Ltd., a case pending in the U.S. District Court for the Eastern District of Texas in which the judge is considering whether to enter a permanent injunction.  In the Statement of Interest – something like the ultimate amicus brief[1] – the United States claimed it was supporting neither party in the relation to the District Court’s determination regarding whether an injunction should be entered.  But in entering the fray and providing “consideration relevant to assessing whether a non-practicing patentee has demonstrated irreparable harm and the inadequacy of monetary damages to compensate for the harm of continuing infringement,” the Statement at least implies that courts are not entering injunctions in favor of non-practicing entities (NPEs) frequently enough.  This appears to be yet another step by the current USPTO administration to strengthen the hand of NPE patentees in their battles against accused infringers.

The Statement of Interest starts with a common ground on which all can agree, the language of the Patent Act: “Every patent shall contain . . . a grant to the patentee . . . of the right to exclude others from making, using, offering for sale, or selling the invention throughout the United States.” 35 U.S.C. § 154(a)(1).[2]  That is, as set forth in the Constitution and Patent Act, patent rights are essentially exclusionary; they encourage innovation by allowing inventors to exclude others from profiting from their inventions.  The Statement of Interest describes the economic theory underpinning these exclusionary rights:

A robust patent system that protects the right to exclude benefits competition by encouraging a multiplicity of innovative solutions, leading to a wide range of products and services that offer different solutions to problems.  See Nat’l Soc. Of Prof. Eng’rs v. United States, 435 U.S. 679, 695 (1978) (Congress’s “assumption that competition is the best method of allocating resources in a free market recognizes that all elements of a bargain . . . are favorably affected by the free opportunity to select among alternative offers.”).

But the United States then seeks to leverage that theory in favor of non-practicing parties seeking to diminish, not widen, the range of products and services available.

The pivot begins with the truism that “[t]he incentive to innovate at the heart of the Patent Act is undermined when the availability of injunctions to block infringement is unduly limited.”  While that is certainly true, the converse is just as true (and unmentioned by the Statement of Interest): the incentive to innovate is undermined when injunctions are too freely entered and the public’s choices of innovative goods and services are limited.  Indeed, it was the Supreme Court’s belief that the Federal Circuit’s  bar to permanent injunctions was too low that led it to decide eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006), the seminal case that the United States agrees applies here.

Rather than the Federal Circuit’s “general rule,” unique to patent disputes, that an injunction will issue as a matter of course upon a finding of infringement and validity, id. at 393-94, Justice Thomas’s opinion for the Court in eBay indicated that the traditional four-factor test for injunctions would apply.  Id. at 391.  That is, a court would have discretion to grant or deny injunctive relief, but that discretion would have to be exercised consistent with the traditional principles of equity that required a patent to show:

(1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.

Id. at 391, 394.  The Statement of Interest then leans heavily on Chief Justice Roberts’s two-paragraph concurrence that seemingly gave back much of the discretion that eBay secured for judges.  That is, the Roberts concurrence suggested considering the “long tradition of equity practice” granting “injunctive relief upon a finding of infringement in the vast majority of patent cases.”  Id. at 395 (Roberts, C.J., concurring).  In doing so, the United States favors the Roberts concurrence over not only the opinion of the Court, but also Justice Kennedy’s concurrence cautioning against too great a reliance on historical perspective.

To build upon the Roberts concurrence, the Statement of Interest collapses the first two factors (irreparable harm and inadequate remedies at law) into one.  It may do so because, unlike with a practicing competitor, an NPE generally has no interest that it is seeking to protect apart from monetary damages: it cannot suffer lost market share, price erosion, loss of goodwill, or loss of market exclusivity.  Thus, the Statement of Interest relies on the assertion that “irreparable harm from infringement without adequate monetary compensation for a non-practicing patentee that licenses for a royalty can occur because (1) patents can be hard to value and (2) damages can be difficult to calculate.”

As to the first point, that patents can be hard to value, the Statement of Interest relies heavily on a series of property cases in which irreparable harm has been found based on (among other things) the loss of control over a unique product or business opportunity.  But the adjective “unique” performs the heavy lifting there; if the disputed property is not unique – and is simply an asset that can generate revenue – the reasoning would not apply.

Similarly, the Statement of Interest criticizes the difficulty of quantifying a reasonable royalty.  Of course, that process has already occurred during trial when an NPE seeks a post-trial permanent injunction.  But the Statement then relies on the Federal Circuit having “identified situations where the loss of the right to exclude in a competitive market can lead to irreparable harm due to the difficulty in calculating monetary damages.”  Like the requirement of uniqueness for the first point, the “competitive” nature of the market is critical to the reasoning.  The Statement of Interest does cite one case, Broadcom Corp. v. Qualcomm Inc., 543 F.3d 683 (Fed. Cir. 2008), that it purports extended that reasoning to non-practicing entities.  But Broadcom was not an NPE in the sense that it is generally understood.  While it did not practice what was protected by its patents, it had developed an alternative, competitive technology; among other things, it was the irreparable harm to its competitive franchise that led the District Court to enter the permanent injunction and the Federal Circuit to affirm it.

The Statement of Interest ends by indicating that a court must consider other equitable factors as well.  That is certainly true, as eBay makes clear that all four factors must be considered.  The Statement concludes with a paragraph that starts by counseling against entering punitive injunctions that would give a patentee undue leverage but ends with a suggestion that some form of injunction should be entered:

At bottom, an injunction should not be punitive and is not designed to give a patent owner undue leverage.  Rather, an injunction serves “to prevent the violation of any right secured by patent.” Joy Techs., Inc. v. Flakt, Inc., 6 F.3d 770, 772 (Fed. Cir. 1993) (quoting 35 U.S.C. § 283).  The leverage that it provides depends on the value of the patent: If there are equally good non-infringing alternatives to the patented technology, then an appropriately scoped injunction will provide very little leverage.  But if the invention is essential to the value of the product, the injunction will provide greater leverage in license negotiations.  An appropriately scoped injunction leaves it to the parties, rather than courts, to determine the value of the technology.

The Collision Communications case provides a case study of why the United States’ Statement of Interest may not be well-founded.  Collision Communications itself did not invent anything.  Rather, the patents-in-suit were the product of research at BAE Systems Information and Electronic Systems Integration Inc., part of one of the largest defense contractors in the world.  Collision Communications was formed to buy internet and telecommunications patents invented by others for potential assertion.[3]  After a deal with Nokia broke down, it had no intent of building on the technology, only licensing or litigating it.  That is, Collision Communications eventually viewed the patents-in-suit simply as assets that it could leverage to make money from others (namely, the defendants) who did the development work. In that sense, it is a traditional NPE.

After winning at trial with a jury verdict for $445,494,160.00,[4] Collision Communications asked the judge for a prospective permanent injunction as well.  Even the Statement of Interest had to criticize the approach that it took to justify the injunction, stating in a footnote, “Collision argues for injunctive relief in part based on 18th-century principles of equity, asserting that under these traditional principles a finding of ongoing infringement is, as a matter of law, irreparable harm.  See PI Motion 9-11, 15.  Such a categorical rule is inconsistent with eBay, and the United States does not argue for such a standard.”  But the categorical rule is the plaintiff’s strongest argument.  And a permanent injunction is likely more of a bargaining chip in negotiating protection of the jury’s verdict or the other licenses that Collision Communications has entered into than a protection of its right to exclude.

The Statement of Interest is just one of the cascade of steps that the USPTO has taken recently to tilt the field toward patent owners and away from accused infringers.  The Director has made it clear that he prefers to give the benefit of the doubt to applicants in determining whether an invention covers patentable subject matter under § 101.  He has proposed regulations that would impose greater burdens on the filing of IPRs than set forth in the Patent Act.  The Director then ramped up discretionary denials of inter partes review, protecting patents against one source of attack, and took the merits decision back into his own hands to further limit the number of IPRs instituted.  Seen as part of that series of actions, the Statement of Interest is just another step to increase the value of patents.  But this time, it may undermine the Director’s goals: while granting and protecting patents from challenges encourages innovation and patent filing, promoting injunctions for NPEs pulls products off the market.  In that sense, the Statement may be a bridge too far for a Patent Office that advertises that it is “open for business.”

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[1] The statement of interest was filed under 28 U.S.C. § 517, which provides, “The Solicitor General, or any officer of the Department of Justice, may be sent by the Attorney General to any State or district in the United States to attend to the interests of the United States in a suit pending in a court of the United States, or in a court of a State, or to attend to any other interest of the United States.”  The USPTO and DOJ’s Antitrust Division were therefore able to submit the statement without intervening in the case or seeking leave to appear as a friend of the court (or amicus curiae).

[2] While the statement of interest does not reference it, § 154 tracks the Constitutional basis for the Patent Act, that Congress has the power to enact laws “[t]o 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.”  U.S. Const. art. I, § 8, cl. 4.

[3] The background of Collision Communications is a bit of sordid tale, litigated in the Delaware Court of Chancery as SDF Funding LLC v. Stanley B. Fry, Civil Action No. 2017-0732-KSJM.

[4] The jury hand-wrote the exact amount on the verdict form and indicated it was a running royalty, not a lump sum.