Senate Hearing on STRONGER Patents Act Highlights Sharp Split on Injunctive Relief, IPR Fixes

“The claim that there would be uncertainty [if eBay was struck down] sounds rather odd when we have 150 years, almost 200 years, of patent cases where they applied a presumption of an injunction on the basis that this was a property right.” – Professor Adam Mossoff

On the afternoon of Wednesday, September 11, the Senate Judiciary Committee’s Subcommittee on Intellectual Property convened a hearing titled Innovation in America: How Congress Can Make Our Patent System STRONGER. The hearing focused on the STRONGER Patents Act, a piece of legislation that has been reintroduced into both houses of Congress, the Senate portion of which has been co-sponsored by the Senate IP Subcommittee’s Ranking Member, Senator Chris Coons (D-DE), fellow Subcommittee members Mazie Hirono (D-HI) and Dick Durbin (D-IL), Judiciary Committee member John Kennedy (R-LA) and Senators Tom Cotton (R-AR) and Kevin Cramer (R-ND). Sources at IPWatchdog’s Patent Masters Symposium this week said that the bill still faces many obstacles to passage. However, according to Senator Coons’ Office, the bill has wide bipartisan support in the House as well.

The panel for the hearing was evenly split between supporters and detractors of the proposed law, and most of the discussion focused on the injunctive relief and inter partes review (IPR) provisions of the bill.

Tillis Wants to Preserve eBay, Multiple Petitions at PTAB

Senator Thom Tillis (R-NC), Chair of the Senate IP Subcommittee, opened his remarks by discussing his concerns about the effects of the STRONGER Patents Act on the U.S. Supreme Court’s 2006 decision in eBay v. MercExchange. Tillis said he believed that case, which greatly weakened the presumption of injunctive relief for patent owners who prove both validity and infringement of a patent, was correctly decided as both a legal and a practical matter and that a provision restoring the presumption could be abused by patent trolls. Tillis was also worried about the bill’s impact on IPR proceedings, which he called a valuable tool for challenging bad patents in front of judges with technical expertise in an alternative forum that was cheaper and faster than district court. “I’m worried [that] by basically allowing only one bite at the apple at the PTAB, that the many benefits IPR provided our patent system could be undermined,” he said.

Sen. Coons’ opening remarks noted that in the past decade or so, there has been a steady erosion of patent rights in the U.S. patent system. The patent right is only meaningful if enforceable and Coons said he believes that the result of eBay has been to effectively reward patent infringers instead of incentivizing good faith negotiations leading towards patent licensing. Coons added that strong patent rights are crucial to startups, which rely on venture capital funding, as the ability to enforce patents can determine whether or not the startup gets the funding it needs to survive.


Panel Splits on STRONGER Support

Three witnesses opposed the STRONGER Patents Act: Professor Tom Cotter of the University of Minnesota School of Law; Dan Lang, Vice President of Intellectual Property at Cisco Systems; and Josh Landau, Patent Counsel at the Computer and Communications Industry Association. Cotter’s testimony focused on the bill’s attempt to overrule eBay, discussing various reasons why that was unwise, including vagaries in the language on restoring injunctions and the ability for patent owners to leverage injunctions and obtain licensing revenues disproportionate to the value of the patented technology. Lang noted that, while Cisco has seen its own patents invalidated by IPR at the Patent Trial and Appeal Board (PTAB), patents asserted against Cisco would likely remain valid if the presumption of patent validity in IPR was codified under the bill. Landau testified that research and development expenditure statistics show that innovation has thrived since eBay. Further, he argued that the single petition and judicial priority provisions of the bill, which would block serial IPR petitions and bar IPR institutions if a federal court has already ruled that challenged patent claims are valid, could prevent meritorious IPR petitions.

By contrast, three other panelists greatly supported passage of the STRONGER Patents Act: Bradley Ditty, Vice President and General Patent Counsel of InterDigital, Inc.; Professor Adam Mossoff of George Mason University’s Antonin Scalia Law School; and Earl “Eb” Bright II, President of ExploraMed. Ditty welcomed the alignment of the PTAB and district court standards for both claim construction and the burden of proof for proving validity that would be achieved through passage of the STRONGER Patents Act. Mossoff said the bill would “end the willy nilly operations of the PTAB,” a tribunal that has been referred to as a “death squad for patents,” and he noted that Federal Circuit Judges Evan Wallach and Jimmie Reyna have both raised fundamental rule of law questions regarding the PTAB’s activities. “The PTAB and eBay represent a legal one-two punch that has destabilized patent rights today,” Mossoff said. Bright noted that, minus injunctive relief, a small startup has no practical way of removing an infringing product brought by a competitor to market and that, even if that larger company has to pay monetary damages for infringement, such damages are simply a cost of business and the larger company has still captured market share from the smaller competitor.

At the start of the questioning period, Sen. Coons discussed the strong dichotomy in ideologies of those present at the hearing, pointing out that the testimony given by Landau and Bright contradicted each other almost word-for-word. Coons asked those two if they could see any value or truth in the other’s testimony. Landau said that he couldn’t speak to Bright’s personal experience, while Bright, while acknowledging that venture capital funding has increased as Landau said, noted that those investments have been shifting towards late-stage companies and away from early-stage startups. Coons pointed out that both witnesses represent vastly different interests within the patent sector. “To paraphrase, where you stand depends on where you sit,” he said.

Misunderstanding Abounds on Injunctions Post-eBay

On the subject of eBay, Mossoff said that there was a lot of misunderstanding about both that Supreme Court decision and the nature of injunctions. “Remedies scholars who have no understanding, nor do they care one iota about patent law, hate eBay,” he said. “If you ever want to see a staid scholar [get] very upset in the remedies context, mention eBay to them.” Although the Supreme Court said that it was reestablishing a multi-factored test for the issuance of injunctions, Mossoff said that no such test existed in Anglo-American law. He added that he has been rereading every patent decision issued in the 19th century as part of an empirical study and he has found zero references to any such test so far. On the other side, Cotter’s main concern about overruling eBay seemed to be the uncertainty that would arise when the courts have now had 13 years to develop rules under that decision. Mossoff found this idea somewhat untenable:

“The claim that there would be uncertainty sounds rather odd when we have 150 years, almost 200 years, of patent cases where they applied a presumption of an injunction on the basis that this was a property right. You have long-standing case law that courts could cite to and rely upon. In fact, I think one of the reasons why you’ve seen so much uncertainty in this area is because when eBay changed the doctrine, there was no case law-controlling precedence to guide the courts.”

Lang stated that Cisco’s perspective was that eBay reflects sound equitable principles and that monetary damages is the right way to reward licensing companies for the harm they’ve suffered through patent infringement. Lang brought up a patent suit against BlackBerry by a non-practicing entity prior to eBay; that case had caused a lot of anxiety among those within Congress and the federal government given their preference for the BlackBerry platform at that time. Mossoff rejoined by noting that the plaintiff in that case was actually the inventor listed on the asserted patents, whose only ability to get BlackBerry to license was through his ability to get an injunction.

Landau, Bright, Spar Over Patent Awareness in Marketplace

Bright noted that injunctive relief was crucial to companies like his, who need anywhere from $75 million to $100 million in investment to develop a medical device. Without the serious threat of an injunction, Bright said market competitors are encouraged to ignore patents instead of developing alternatives by designing around issued patents. This led to a rather interesting exchange between Bright and Landau:

Landau: “If they didn’t look at the patent and came up with it independently, then is it really fair to take their product off the market for what was their own invention? If the infringing company came up with it on their own, there’s a basic fairness concern in saying, ‘Well, you can’t sell your product even though you came up with it because somebody else came up with it a few months earlier.’”

Bright: “It’s not that they came up with it out of the blue. They came up with it because they became aware of the other company working on it.”

Landau: “But we just took as a hypothetical that they don’t look at other patents. They didn’t become aware of it.”

Bright: “You don’t only become aware by looking specifically at patents. You become aware of it through the marketplace.”

Tillis: “Well, this here has become a first-class debate club and actually I think we can learn a fair amount from that.”

Ending Fee Diversion: One Area of Consensus

As divided as the panel was on the issues of injunctive relief and IPR proceedings, there was one aspect of the bill that received unanimous approval from the witnesses: the elimination of fee diversion at the U.S. Patent and Trademark Office. Cotter noted that recent studies show that patent examiners spend an average of 19 hours examining a single patent application, a statistic that hasn’t changed in about 20 years. The STRONGER Patents Act opponents supported the effects that elimination of fee diversion at the agency would have on issuing higher quality patents. Mossoff noted that the patent quality debate was difficult because of the changing standards of patent quality evaluation, pointing out the impact of previous Supreme Court decisions in Alice, Mayo and KSR. Patents invalidated under the Alice/Mayo framework weren’t invalid because they received an improper examination but rather because the law had changed, Mossoff argued. Further, he noted that there was no empirical study supporting the fact that there are more bad patents today compared with prior decades. “It’s just a general sense, and conventional wisdom is sometimes right but is often times wrong; we would hope that, if we’re talking about certainty and ensuring that we have data, we should be putting together policy prescriptions and hopefully legislation and regulations on the basis of data, not on unconfirmed conventional wisdom,” he said.

Other Stakeholders Weigh In

On September 10, a group of 27 university professors, including Mark Lemley, Margo Bagley, Arti Rai and others, sent a letter to Congress expressing their opposition to the bill. They wrote:

“The changes to IPR set forth in the STRONGER Patents Act are not necessary, given the Patent Office’s discretion over decisions of whether or not to institute IPR proceedings. That discretion allows the PTO to handle the highly fact-specific issues that arise in IPR proceedings on a case-by-case basis to address concerns that might arise about potential abuses of the IPR process. The bright line provisions of the STRONGER Patents Act are both unnecessary and unwise.”

The Innovation Alliance’s Executive Director Brian Pomper thanked Coons and Tillis for holding the hearing and said that the bill would help to reverse the alarming trend of innovation going overseas by restoring injunctions and fairness at the PTAB:

“The PTAB was intended to be a quicker and cheaper venue to challenge the validity of questionable patents, not an easier venue. In practice, it has been easier to invalidate patents in the PTAB than in district court, and the PTAB process has been abused by large corporations who have initiated repeated PTAB challenges against valid patents in ways not intended by Congress or tolerated in district court. This legislation is urgently needed to maintain our patent system’s role as an engine for U.S. economic growth and job creation, as it has done for more than 200 years.”

Note: this article was updated on September 12 to correct a statement indicating that the STRONGER Patents Act has no Republican co-sponsors. The bill does have bipartisan sponsorship.


Warning & Disclaimer: The pages, articles and comments on do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author as of the time of publication and should not be attributed to the author’s employer, clients or the sponsors of

Join the Discussion

42 comments so far.

  • [Avatar for Ziggie]
    October 29, 2019 11:18 am

    I would like to say, the anti patent stance the PTAB and 101 have taken have forced my hand to go to Germany. I have filed for and received much needed angle investors something that would of been impossible to get in the new Anti Patent America.

    I am proud to say with patent injunctive relief in play in Germany I have been able to grow my business and have hired an additional 8 new members to our growing company.

    Every great empire has an expire, its mind boggling that America has allowed corporate interests to come first and kill off patent protections, the one thing that helped it become the superpower it is, but not for long. Lang lebe Deutschland!!!

  • [Avatar for staff]
    October 21, 2019 10:58 am

    We believe no bill will restore our patent system for inventors that does not:

    1. Restore our right to injunctions as the constitution promises.

    2. Restore a broad scope of patentability so that all useful inventions are eligible as the constitution demands and as the founders intended.

    3. Restore our right to trial by jury by eliminating all post issue reviews.

    Only then can any bill even begin to restore our patent system for inventors so that we will once again will have a realistic expectation we will be able to commercialize our inventions. Our bill includes these and also addresses the most essential of the current problems that inventors face in this patent system which is for us all but dead.

    For our position and the changes we advocate (the rest of the truth) to restore the patent system, or to join our effort, please visit us at
    or, contact us at [email protected]

  • [Avatar for staff]
    October 1, 2019 07:54 pm

    “The claim that there would be uncertainty [if eBay was struck down] sounds rather odd when we have 150 years, almost 200 years, of patent cases where they applied a presumption of an injunction on the basis that this was a property right.”

    We completely agree. Amen!

    Don’t believe the lies of thieves and their paid puppets who tell you inventors do not have a right to their inventions, or a right to trial by jury for disputes over them. As Mark Twain said, ‘truth is not hard to kill, and (that) a lie well told is immortal’.

    For our position and the changes we advocate (the rest of the truth) to restore the patent system, or to join our effort, please visit us at
    or, contact us at [email protected]

  • [Avatar for angry dude]
    angry dude
    September 20, 2019 02:33 pm

    IP Lawyer @38

    Is this the same “IP Lawyer” posting earlier in this thread ?

    If yes, then you are two faced mf (if not I still do not apologize cause that’s what you lawyers are)

    BTW, Google’s initial tech was entirely on a server side – well protected by trade secrets – patent app was just for VCs enticement (20 years ago … boy, times have changed !!!)
    Later on, when they got billions, they branched out to all kinds of software and hardware tech – cells phones, tablets, VR, AR, self driving cars … you name ti..
    Same with Facebook and Amazon too

    R u suggesting that in order to start manufacturing hardware products based on my patent on embedded software algo I have to found and make profitable some kind of e-commerce business like Uber or Airbnb first ???

  • [Avatar for IP Lawyer]
    IP Lawyer
    September 20, 2019 12:42 pm

    Perth Levy @36. Yes. Google would not exist but for a little provisional that prompted investment. It was 20 years ago. Smarter times. Nowadays the right to exclude is dead (if you are lucky). If you are unlucky they take your patent and they trash it with rulings that go all over the places. Often the same Office that gave the patent to you after spending tons of money in fees takes it away at whim. Startups are at their lowest point in history. Nobody puts money in innovation. Legislators are slowly realizing it but the big companies maintain power and steer the decision-makers in questionable ways.

  • [Avatar for angry dude]
    angry dude
    September 20, 2019 09:36 am

    Perth Levy @36

    “…the very first official thing I did, in my administration–and it was on the very first day of it, too–was to start a patent office; for I knew that a country without a patent office and good patent laws was just a crab, and couldn’t travel any way but sideways or backways.”

    (Mark Twain: “A Connecticut Yankee in King Arthur’s Court”)

    USA is a crab nowadays and guillotine is coming

  • [Avatar for Perth Levy]
    Perth Levy
    September 19, 2019 12:17 pm

    The current patent rules have taken everyone out of the game except the ones that are the strongest like Intel,Google,Microsoft,Apple, Amazon.Facebook ect…

    There is zero protection and incentive for a person to invent and start up a company in the current America. We the inventors need to look to other countries that will protect out intellectual property right with the rule of law.

    U.S. is nothing more then a Corporatocracy that only care for the dollar and is already starting to see the ramifications as China, Japan and South Korea are outspending the U.S. in 5G and AI. When you slam the door shut on inventors in your own country you kill off the one thing that made you great, and that was its IP protection for all its inventors. In todays America a company like Apple or Google would not have a chance to get off the ground because of the anti patent laws that are active in America.

  • [Avatar for angry dude]
    angry dude
    September 17, 2019 02:20 pm

    You, dudes, “IP lawyers” and other “renowned” patent attorneys, should now be ashamed of your entire profession
    Making factually and legally incorrect statements on this very public IP blog and further arguing about it is complete loss of composure
    The guillotine is coming…

  • [Avatar for Anon]
    September 17, 2019 01:47 pm

    I do NOT misunderstand how legal argument works – YOU misunderstand how “opinion” works.

    Still waiting for you citation.

  • [Avatar for TFCFM]
    September 17, 2019 12:01 pm


    I don’t wish to argue about the point, but you appear to misunderstand how legal argument works. One purporting to recite a standard (e.g., “the current judiciary view of injunction is as a measure of last (or near last) resort”) bears the burden of coming forward with authority demonstrating that the recited standard is the correct one.

    Because I say so” is not such authority*; it is mere opinion.

    *(except perhaps for legislators or Supreme Court justices who are part of an appropriate majority faction)

  • [Avatar for Anon]
    September 17, 2019 09:38 am


    You continue to rely on a point that was just called out as being at issue, and then wonder why you get nowhere…?

    Please provide a citation that says that only things that have been cited are not opinions.

    By your own “logic,” then, this should be easy for you.

  • [Avatar for TFCFM]
    September 16, 2019 11:53 pm

    @anon: “You presume (ASSume?) that anything without a citation must be mere opinion

    Your inability to cite anything authoritative that REMOTELY resembles your opinion certainly causes it to, at least, rhyme with “mere opinion.”

  • [Avatar for Anon]
    September 16, 2019 06:25 pm

    IP Lawyer @ 25,

    Not only is your reply non-responsive, but you accuse me of the very thing that YOU do.

    To wit: “ when I realize that they do not read my answers to understand my point

    I understand FULL WELL your answer and your attempted point — which is exactly why I spoke up to provide a counter point. To THAT counter point, it is you that has dismissed the point with an apparent LACK of understanding. If you did understand the nature of the negative right, then you would not have so casually dismissed the point especially in relation to how I presented it to you, showing you full well why I provided that point to your initial suggestion.

    This has ZERO to do with me just posting to make myself feel good, and this type of vacuous accusation from you (in order to actually NOT address the point presented) only hurts YOUR position.

    I would suggest that this type of presentation from you is far worse for you than had you not spoken at all. Certainly there are many social platforms out there. THIS ONE has to do with discussions of patent law. If YOU want to come on this platform, say something clearly wrong, and then act as you do when the counter point showing why you are clearly wrong is presented AND have you spout the nonsense of “I tend to shout down a conversation with people“” then it is YOU that is on the wrong social platform.

    As I stated in reply to you: Now, if you want to engage (and understand what the point is in that patents are a negative right), then by all means, let’s have a chat.

    You may actually learn something.

  • [Avatar for Anon]
    September 16, 2019 06:16 pm


    You presume (ASSume?) that anything without a citation must be mere opinion.

    That is simply not so.

  • [Avatar for angry dude]
    angry dude
    September 16, 2019 02:02 pm

    IP Lawyer@26


    I don’t give af about your (mis)service to this country and i’m at no service anymore to any of your profession

    I did a (free) service to “promote the progress” in general and to high-tech in particular years ago
    That service wasn’t “free as in beer” and still needs to be paid for..
    I am still waiting..
    But with dudes like you at the “Highest Court in the Land” we (independent inventors and small high-tech R&D startups) are just screwed….
    To the morgue then…
    Now get lost

  • [Avatar for TFCFM]
    September 16, 2019 09:43 am

    RE #17-18 above

    I think where we left this prior to the weekend was here:

    anon: “the current judiciary view of injunction is as a measure of last (or near last) resort.

    TFCFM: “Do you have a citation to share with us, or are we simply supposed to believe that this is not-just-your-opinion?

    Did I miss your citation, or are you willing to grudgingly admit that this is merely your opinion?

  • [Avatar for IP Lawyer]
    IP Lawyer
    September 16, 2019 08:37 am

    @angry dude, it is then very unfortunate that I do have an admission to discuss these issue with the Highest Court in the Land while I do not understand much. It is a good thing that angry dudes like you keep a watchful eye. Keep up the good work and thank you for your service.

  • [Avatar for IP Lawyer]
    IP Lawyer
    September 16, 2019 08:04 am

    angry dude & Anon, again I am not sure why you insist on having a conversation with me. As I said, “negative right” (which I learned a few decades ago) is not my point and has little to do with my point. I tend to shout down a conversation with people when I realize that they do not read my answers to understand my point but just to reply something and feel good about themselves. There are many social platforms for that.

  • [Avatar for Anon]
    September 15, 2019 08:37 pm

    IP Lawyer,

    If you are just going to “drive by” and get things wrong, it would probably be better for all if you just drove by and didn’t say anything.

    Now, if you want to engage (and understand what the point is in that patents are a negative right), then by all means, let’s have a chat.

  • [Avatar for angry dude]
    angry dude
    September 15, 2019 11:19 am

    Anon @21

    Its sad that some “IP lawyers” do not understand the patent bargain as originally intended
    Negative right can’t be a monopoly
    Oh well, to the morgue…

  • [Avatar for IP Lawyer]
    IP Lawyer
    September 15, 2019 11:09 am

    @ Anon, sorry but as I said that was my last response. (PS, I do not really see the point in you “teaching” me that a patent is a negative right). Have y’all a good Sunday.

  • [Avatar for Anon]
    September 15, 2019 08:26 am

    IP Lawyer,

    Not to pick a nit, but you err on the Quid Pro Quo that you suggest to another that “Once you understand that it should be easy.”

    The “limited monopoly” is NOT a positive right of doing anything.
    The patent is a negative right ONLY.

    Further, the Quo for the government (and through the government, the public) is the publication — and that is it.

    Your desire for “should also incentivize the allocation of capitol to make it happen” is entirely OUTSIDE of the Quid Pro Quo.

    Your position is in error in that you imply a condition that MAY WELL be a benefit, but such is simply not a part of the bargain.

    This is NOT to say that such a happenstance (outside of the bargain) is not to be desired, and it is not to say that such a happenstance (outside of the bargain) would not bring ADDITIONAL benefits. I agree completely with the position that many ADDITIONAL benefits may well be obtained in the phase of innovation of turning the actual negative right aspect of a patent into a positive aspect of actually “making it happen.”

    But everyone should be absolutely clear that “making it happen” is NOT a part of the patent bargain.

  • [Avatar for IP Lawyer]
    IP Lawyer
    September 14, 2019 03:12 pm

    @ angry dude

    Dude, I understand that The Big Lebowski had a huge impact on your life but please stop dudeing everybody. Not sure who I am having this discussion with, so this is my last reply.
    I will explain it as if I was an elementary teacher.

    Here we go. A patent gives an incentive to be creative and research and invest and disclose good ideas in return for a limited monopoly on that good idea. The limited monopoly should also incentivize the allocation of capital to make it happen. On the other hand, the inventor has the burden to actually advance the state of the art by disclosing something new, non-obvious and yada yada. If there is no way to reverse engineer a good idea, an inventor has perhaps an incentive to keep it a trade secret. It is not very difficult.
    Since you like movies, I quote Hannibal Lechter…it is just a “Quid pro Quo” between a Nation and an Inventor. Once you understand that it should be easy.

  • [Avatar for angry dude]
    angry dude
    September 14, 2019 12:02 am

    IP Lawyer @16


    “To promote the progress” means giving people incentive to publicize their inventions as opposed to keeping them as trade secrets.. or not inventing anything at all if trade secrets don’t work (as in the “bunch-of-balloons” case where the original inventor was very lucky according to his own testimony on this blog)

    Any other statement to this regards is total bs

  • [Avatar for TFCFM]
    September 13, 2019 09:48 pm

    @anon: “ the current judiciary view of injunction is as a measure of last (or near last) resort.

    Do you have a citation to share with us, or are we simply supposed to believe that this is not-just-your-opinion?

    (I don’t understand your ?point? about “first”.)

  • [Avatar for Anon]
    September 13, 2019 06:32 pm

    For the first point, I said first – not only.

    The second point is that the current judiciary view of injunction is as a measure of last (or near last) resort. The distinction to keep in mind is the context of what a patent actually is (a negative right).

    These are most definitely NOT “merely my opinion.” Get over that fallacious line of response.

  • [Avatar for IP Lawyer]
    IP Lawyer
    September 13, 2019 06:10 pm

    @ angry dude. The first recorded patent for an industrial invention was granted in 1421 in Florence to the architect and engineer Filippo Brunelleschi. The oldest bank still in existence is Banca Monte dei Paschi di Siena, headquartered in Siena, Italy, which has been operating continuously since 1472. “To promote the progress” it means that good ideas get founded and become reality not to spread knowledge. You do not need patents for that. You need only libraries. Why should a bank (or a VC) found a project that can be taken away at whim?

  • [Avatar for TFCFM]
    September 13, 2019 04:18 pm

    1) Equity is first and foremost about making the aggrieved as whole as possible.
    [2)] The “traditional” sense of “injunction as the most severe form of equitable remedy” must be taken in context to the nature of the right transgressed.
    Can you agree/acknowledge/integrate these two foundational aspects into our dialogue?

    I do not agree, other than that those two statements reflect merely your opinion.

    Regarding your first point, equity is not primarily about making “the aggrieved as whole as possible.” To the contrary, it is a much broader principle for achieving justice fitting the circumstances of the matter before a court. (Consider, for example, the equitable principle of “unclean hands,” which *reduces* an aggrieved party’s recovery under appropriate circumstances).

    I’m not sure that I understand what you’re trying to say in your second point, and decline to agree for that reason alone. I don’t believe that an injunction is necessarily “the most severe form” of an equitable remedy (to whomever or to whatever “traditionally” might refer) or regardless of the “nature of the right” (???) might be.

    In U.S. courts, the availability of the equitable remedy of an injunction is generally governed by a “balancing of the equities” test that varies little, if at all, among the various fields of law (and regardless of whatever “nature of the right” may be). Over time, patent practitioners developed a belief that patent cases were “special,” such that a balancing of the equities was unnecessary, or even prohibited. In eBay, the Supreme Court squarely addressed that belief for the first time and found it to be without basis.

    One seeking to assert that the Supreme Court was wrong should be prepared to identify a basis (in law or equity — not “because I REALLY WANT an injunction”) for the assertion. Equity does not include a principle (in the US or in any other common law jurisdiction) that patent law is “special” and has its own specific principles of equity, alone among all other types of law.

    Injunction is, very simply, an equitable relief and should be available to all litigants, on all causes of action, on the same terms. In a patent case, if the balance of the equities favors grant of an injunction, then an injunction should be granted. If not, then not (just as in all other types of cases).

  • [Avatar for JTS]
    September 13, 2019 02:42 pm

    “Tillis: “Well, this here has become a first-class debate club and actually I think we can learn a fair amount from that.””

    It’s so easy to get jaded on politics. Does anyone else find this encouraging, to see an elected representative seeking objective truth, regardless of the issue?

  • [Avatar for Anon]
    September 13, 2019 12:51 pm


    Your argument is flawed.

    It is not that those with the property known as patents want special or different treatment.

    You begin with a strawman and then seek to knock it down.

    What IS wanted is that the actual principles of equity are applied — specifically in the context of what a patent actually is.

    Let’s agree to two items:

    1) Equity is first and foremost about making the aggrieved as whole as possible.

    The “traditional” sense of “injunction as the most severe form of equitable remedy” must be taken in context to the nature of the right transgressed.

    Can you agree/acknowledge/integrate these two foundational aspects into our dialogue?

  • [Avatar for IP Lawyer]
    IP Lawyer
    September 13, 2019 12:41 pm

    In the end, the “death zone” for startups is what summarizes this discussion. A patent is a controlled monopoly that should be used to fight economic monopolies. Google lost track of the fact that its own fortune started with a provisional application. The very same system that allowed Google and many others to be founded is not adequate anymore, it seems. How convenient. On the other hand, if the Patent Office behaves as a profit center and is currently remunerated for both creating and destroying its own work product, what is the incentive for good quality patents for which inventors and companies have handsomely paid? And these are just two many elements to consider.

  • [Avatar for angry dude]
    angry dude
    September 13, 2019 10:16 am

    TFCFM @10

    Dude, if some squatters build a house on your properly acquired and titled property (for which you pay annual taxes) while you are away, would you let them stay ?
    Same with patents
    Get out of my property ! Period.
    How many injunctions were granted to NPEs (individual patent owners and small R&D companies) since EBay ?
    I guess none – correct me if I’m wrong
    If same rules applied to real estate there would complete devastation of the real estate market with houses costing 1$ to purchase
    $1 is still too much to pay if you can move in for free and stay forever

  • [Avatar for TFCFM]
    September 13, 2019 09:43 am

    Folks who wish to overturn eBay should begin by clearly defining why patent owners alone, among all litigants possessing property rights and far-more-important individual rights, are so specially… blessed? special? better-than-everybody-else?… that the law pertaining to injunctions which is good enough for everyone else is not good enough for patent owners.

    (Perhaps George Orwell can help them out. After all, as Mr. Orwell pointed out, even if all animals are equal, some are more equal than others, right?)

  • [Avatar for angry dude]
    angry dude
    September 13, 2019 09:28 am

    Josh Malone @3

    Another question to ask:
    If something important were discovered in the absence of working patent system would it be publicly disclosed ?
    “To promote the progress” as originally intended by the Founding Fathers when they wrote this into the US Constitution
    The original purpose of the patent system is NOT to raise venture capital (it did not even exist 200 years ago) mind you, but “to promote the progress of science and useful arts” via public disclosure

  • [Avatar for concerned]
    September 13, 2019 03:37 am

    I just came up with the greatest of ideas….a device that fills multiple balloons at once. The idea was a flash of genius while I was at Walmart.

    I wonder if Mr. Landau can help with my marketing?

  • [Avatar for Inventor#1]
    September 12, 2019 11:52 pm

    Replace the word ‘patent’ with the word ‘property’….I think Congress needs to remember that we are talking about property rights

  • [Avatar for anonymous]
    September 12, 2019 02:25 pm

    I’m totally in the Professor Mossoff camp on this one. Landau’s arguments are laughable and illustrate a fundamental misunderstanding of patent law. That a later company may independently derive that which has already been patented makes no difference when determining infringement.

    Innovation is fostered when late-comers have three options: pay to take a license, use a non-infringing substitute, or innovate around the patented property and improve the state of the art yourself, which improvement may itself be patentable. Only with these incremental, time-limited property rights does the incentive to innovate improve.

    The notion that a big company can infringe with no threat of injunction is just wrong and, as Mossoff said, contradicts 200 years of well established case law regarding injunctive relief as an equitable remedy.

    I strongly favor the STRONGER Patents Act. The removal of eBay is as important as fixing the damage Alice did to 101.

    Congress, please exercise your power to set patent policy, not allowing the courts to try to do it for you. Now is the time for you to act!

  • [Avatar for Ternary]
    September 12, 2019 01:12 pm

    “Would these patented inventions just appear absent a patent system?” Good question Josh. With a straight answer in my case. No!!!! Absolutely not.

    My inventions are so unusual that they are fundamentally novel. That is: they are not anticipated nor are they obvious. It requires a novel way to look at digital switching circuits to arrive at my inventions. It is so unusual that almost all of my patent applications on inventions in this field are initially rejected as being ‘abstract.’ Basically because you have no general way to describe it.

    I can assure you, even under the caution of perjury, that I would never have done this work, if not with the promise of possible compensation by owning the IP rights. I could tell you about the 1000s of hours I spent in developing and testing the concepts to come to workable devices and methods and to articulate and prosecute patent claims.

    I did these things relying on the potential of owning patents in the early 2000s. That is not to say that I was not aware of problems and pitfalls of asserting IP rights. But pondering the pros and cons I believed it was worth it. Not any more.

    Had I known at the time what the patent system would degenerate into, I would never, never, never (did I say never) put in this effort as an independent researcher to articulate, what was at the time an interesting theoretical brain fart into an operational invention. I probably would have thought what I am now convinced about: let the “big” guys who are convinced they know it all, figure it out themselves. I have other things to do that are at least as interesting.

  • [Avatar for Night Writer]
    Night Writer
    September 12, 2019 01:02 pm

    Josh Landau, Patent Counsel at the Computer and Communications Industry Association, was pushing the old canard that no one reads patents so people just independently come up with inventions.

    Everyone that knows anything about innovation knows that is absurd. The patent makes the information open so that the company doesn’t try to hide it in the product or marketing and the inventor may present papers and discuss the invention.

    This is the same ole crxp that I have heard 1000 times from the anti-patent crowd. You push the argument that no one reads patents so it is independently invented and you are intellectual dishonest and trying to push something no one in the innovation industry would take seriously.

    Landau was just pushing one of their talking points (propaganda points). It is just a disgrace that garbage like this can be said at a Congressional hearing without the person saying it being excoriated. Again–no one that has done this work for real would give any credibility to what Landau said.

  • [Avatar for Josh Malone]
    Josh Malone
    September 12, 2019 11:15 am

    Eb Bright and Josh Landau are debating a deeper issue.

    Are patents being issued for a substantial number of inventions that would have been discovered absent a property interest to collateralize the venture capital?

    Would these patented inventions just appear absent a patent system?

    We are doing the experiment. From 1790 to 2006 we had a property interest to collateralize the venture capital.

    From 2006 to 2019 we have virtually eliminated the exclusion right.

    Probably the science and business committees should take up this issue. The litigation committee doesn’t understand innovation.

  • [Avatar for Ternary]
    September 12, 2019 11:02 am

    Great reporting, as usual, Steve. What an embarrassing spectacle. Having, presumably “serious” people, including academics, blatantly advocate for the interests of large companies. Step by step the patent system is continued to being demolished.

    I had the same impression as Liberty @1 while reading the article. The STRONGER Act or anything to improve the position of independent inventors is not going to pass.

    I would never, never (did I say never) have submitted a patent application had I known that the patent system would end in this morass of corporate interests. The incentive to do independent R&D has largely been taken away. The proverbial “you should get a patent for that” has disappeared from our conversations. Everybody knows that a patent nowadays is pretty much useless and worthless. We effectively live in a corporate state, wherein the role of independent inventor is undefined and basically unwanted. The American independent inventor is now a myth, like the American cowboy.

    Large companies do not want independent inventors (but we already knew that). Congress largely agrees with that. Courts and USPTO are the executioners of that policy.

    During a recent trip overseas, I was impressed with the vibrancy of new start-ups there. That excitement has largely disappeared in this country. Nice job Congress and interest groups. I briefly believed that we had reached a turning point. Unfortunately it will have to get much worse before it gets better.

  • [Avatar for Liberty]
    September 12, 2019 08:56 am

    NO Chance The STRONGER Patent Act will pass they have a 13% Prognosis that it will see the light of day (Skopos Labs) in both the Senate and House. I found it very telling that Apple Google or Amazon did not even have a rep there and I do not consider Mr. Josh Landau a great rep. All this was nothing more then political theater. We ALL know how much money FAANG donates to Rep & Dem. PATENT ARE FINISH IN THE UNITED STATES OF AMERICA. The Elites are the only ones that can afford to protect their IPs while small inventors will be whipped out. China and Germany are looking better and better everyday for a new patent holder to get real protection for their IP. What a joke the system has become, a true corporatocracy.