By Joshua Rich –
When we last encountered the Collison Communications v. Samsung case in the Eastern District of Texas, the U.S. Department of Justice’s Antitrust Division and U.S. Patent and Trademark Office had submitted a “Statement of Interest” on whether a non-practicing entity could obtain a permanent injunction after prevailing in patent infringement litigation.[1] Since that time, the parties submitted supplemental briefs and the Court held oral argument. Then, on May 17, 2026, Judge Gilstrap entered an Opinion and Order denying the motion for permanent injunction.
The Government’s Statement of Interest purported to support neither party, but sought to reinforce the position that a non-practicing patentee could demonstrate irreparable harm and the inadequacy of monetary damages. It noted that a court must consider two other factors under the controlling precedent of eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006), namely the balance of the hardships between the parties and whether the public interest would be disserved. The Statement of Interest identified the two remaining factors as part of the eBay test, but addressed only in a single footnote in which the Government identified factors regarding the balance of the hardships that had been considered (whether there were non-infringing alternatives and the parties’ respective sizes, products, and revenue sources) and disregarded (the infringer’s commercial success or sunk development costs).
The Statement of Interest came at an awkward time in the case: principal briefing on the motion for entry of preliminary injunction had been completed, and all that remained was oral argument. But both sides submitted short supplemental responses to the Statement of Interest, and both suggested that the Government did not get the law quite right.
Samsung’s response started from its points of agreement with the Statement of Interest: that the Government had not weighed in on the balance of the equities or public interest (which Samsung asserted heavily favored it) and that all parties accepted the eBay four-factor test. But it argued that the legal issues raised by the Government on the first two factors did not fit the facts of the case and that the Statement of Interest was incorrect to the extent that the uncertainty of future events would be sufficient to establish irreparable harm. Specifically, Samsung highlighted that damages were not hard to quantify here because Collision’s business was licensing and therefore quantification of damages – both retrospective and prospective – was straightforward. Then, most pointedly, Samsung disputed that “courts should be included to issue injunctions to encourage ‘license negotiations’ and thereby ‘leave[] it to the parties . . . to determine the value of the technology.’” As Samsung pointed out, the Government had submitted a Statement of Interest less than a year earlier in which it acknowledged that the Federal Circuit had not yet found irreparable harm for a patentee who relies solely on licensing.
Collision then responded, arguing that the Government had gotten much of its analysis of the first two factors right, but had erred by not recognizing that “courts must apply equity as it was applied by the English Court of Chancery in and around 1789” and that eBay had not superseded the equitable principle that ongoing violations of rights constituted irreparable harm. Essentially, although Collision included a heading that “Collision’s Patents are Unique and Difficult to Value,” it believed that the law was categorical: if there was ongoing infringement, the harm was irreparable. It argued that Justice Kennedy’s concurrence in eBay was not only not binding law, but it – and the Government’s reliance on it – was simply wrong in suggesting that the case displaced the traditional, categorical presumption of irreparable harm in favor of a burden on the patentee to prove the element of the injunction test.
Judge Gilstrap’s decision recognized the difficulty of rendering a decision when the two sides argue wholly inconsistent legal presumptions, rather than focusing on the facts of the individual case. Collision presumed all four elements of the eBay test by dint of being a prevailing patentee subject to continuing infringement. Samsung, on the other hand, presumed that there could be no irreparable harm or inadequacy of damages because Collision was a non-practicing entity that sought only to license its patents. Instead of choosing one of the two poles, Judge Gilstrap split the difference: he noted that the Federal Circuit prior to eBay had presumed the entry of an injunction “absent a sound reason to deny such relief,” whereas the eBay district court had presumed a lack of irreparable harm for a non-practicing entity but the Supreme Court had rejected both. And although he noted that “since eBay monetary damages have become the presumptive remedy in practice,” he pointedly held “that there is no presumptive remedy in patent cases.” That is, “[e]ither a plaintiff seeks an injunction and shows that it meets the eBay test, or if not, money damages apply.”
On irreparable harm, Judge Gilstrap set forth both parties’ categorical positions then, citing the Government’s Statement of Interest, rejected them both. Instead, he focused on the facts of the case before him, specifically a “design-win” competition between Collision and Samsung’s internal design team. Although the parties contested what the loss (which involved Nokia losing interest in Collision’s technology) meant, Judge Gilstrap found that it, alongside Samsung’s continuing infringement, was sufficient to constitute irreparable harm.
On adequacy of monetary damages, Judge Gilstrap again rejected Collision’s call to apply 18th century equity principles or Samsung’s call to apply only money damages to relieve the harm of future infringement. Although not setting forth any specific facts, he agreed that “the historical underpinnings of the injunction as an equitable remedy in patent cases must not be ignored or swept away.” Therefore, on the totality of the record before him, Judge Gilstrap found money damages inadequate.
The momentum of the decision shifted when it moved to the balance of the hardships, however. Collision relied upon the historical presumption in its favor and asserted that a one-month grace period would “give[] Samsung ample time to bring its infringement to an end.” Samsung argued that the injunction would “impose burdens” on its hundreds of thousands of employees, but made no argument regarding the burden an injunction would place on the company itself. In short, both sides failed to present sufficient factual arguments. Based primarily on the burden of proof – that a plaintiff has to establish all of the elements of the injunction test – Judge Gilstrap found that Collision’s failure of proof prevented the imposition of an injunction.
The most important consideration on the balance of hardships may have been relegated to a footnote, however. Judge Gilstrap noted that Collision had made arguments at trial inconsistent with its injunction papers on the centrality of the technology to Samsung and the absence of non-infringing alternatives. That is, to prove its case on the merits (and increase damages), Collision had taken positions inconsistent with its argument that Samsung would bear no hardship in switching away from its existing technology. Given the difficulty for a non-practicing entity to show any hardship itself, the circumstances disclosed in the footnote show the difficult bargain that it must make: a lack of non-infringing alternatives may bolster a non-obviousness case and drive up damages, but doom any potential permanent injunction. It creates a far more tenuous tightrope walk than that faced by a practicing, competing entity that can point to ongoing harm to its business in a way that a non-practicing entity cannot.
Finally, on the public interest, Collision again argued for a categorical rule (based on a pre-eBay decision). Samsung, in contrast, asserted that an injunction “would drive up the price of smart phones, limit consumer choice, prevent necessary repairs, and prevent wireless carriers from meeting consumer demand.” As with the balance of hardships, Judge Gilstrap rejected Collision categorical rule as inconsistent with eBay‘s requirement of a showing on each of the elements. He found that “Collision has made no showing that in this case, on these particular facts,” that enforcement of patent rights would be in the public interest.
Again, a footnote showed Judge Gilstrap’s thought process: he suggested that Collision’s combined arguments – that irreparable harm and insufficiency of monetary damages were established as a matter of law and that harm to Samsung would be immaterial to hardships – signaled that Collision was “seeking a return to the Federal Circuit’s pre-eBay practice of near-automatic injunctions once infringement is found.” His analysis suggested that Collision was being disingenuous in arguing that public interest was the only barrier to an injunction and would also always favor injunctive relief. As he put it, “Collision’s briefing seems to say, ‘Heads I win, tales you lose.’”
Judge Gilstrap’s decision in Collision Communications v. Samsung shows just how difficult it is for a non-practicing patentee to obtain injunctive relief, even with the weight of the Department of Justice’s thumb on the scale on two of the eBay factors. All patentees must carefully now weight how their arguments on liability and damages will affect their chance for injunctive relief; for a non-practicing entity, the scales are far more delicately balanced. The opinion is carefully worded, relying on factual showings rather than the legal absolutes proposed by the parties, which makes it less susceptible to reversal on appeal. All in all, the decision will likely push other non-practicing entities back toward putting their eggs in the liability and damages basket: if Collision cannot get a permanent injunction in this case, it will be nearly impossible for a non-practicing entity to obtain that relief without the Government standing behind it.
[1] https://patentdocs.org/2026/03/05/uspto-and-doj-statement-of-interest-in-collision-communications-another-thumb-on-the-scale-in-favor-of-npe-patent-plaintiffs/
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