Coons, Cotton Reintroduce RESTORE Act on Injunctive Relief

Senators Chris Coons (D-DE) and Tom Cotton (R-AR) today introduced the Realizing Engineering, Science, and Technology Opportunities by Restoring Exclusive (RESTORE) Patent Rights Act of 2025, which would restore patent owners’ right to the rebuttable presumption that a court will issue an injunction upon a finding of patent infringement. Representatives Nathaniel Moran (R-TX) and Madeleine Dean (D-PA) also introduced a House companion bill.

The RESTORE Patent Rights Act is just one sentence long. It proposes to amend Section 283 of the patent law to add the following language:

“(b) REBUTTABLE PRESUMPTION.—If, in a case under this title, the court enters a final judgment finding infringement of a right secured by patent, the patent owner shall be entitled to a rebuttable presumption that the court should grant a permanent injunction with respect to that infringing conduct.”

The bill was first introduced in July 2024 by Coons and Cotton, and a hearing was held in December by the Senate Subcommittee on Intellectual Property featuring witnesses both for and against the legislation. Some believe the language of the bill would abrogate the Supreme Court’s 2006 eBay v. MercExchange decision and return patent litigation to pre-eBay times, while others don’t think it would go far enough to undo the harms of that decision.

Still others, including two of the witnesses at the December hearing, think eBay has been a net positive for the patent system, that injunctive relief is still readily available, and there is no need to make the change proposed by RESTORE.

A press release announcing the bill’s introduction into the 119^th congress today cited a study showing that, since the eBay decision: “requests for permanent injunctions in patent cases fell by 65% for companies that use their patented technology to manufacture a product; grants of permanent injunctions to those companies fell even more significantly. Requests and grants for licensing patent owners like universities and research clinics dropped even further: Requests fell by 85%, and grants fell by 90%.”

The announcement included statements by IP experts such as former U.S. Patent and Trademark Office (USPTO) directors Andrei Iancu and David Kappos; the executive directors of leading IP organizations; and other well-known IP community members. “The RESTORE Patent Rights Act will provide inventors with the reassurance they need to propel American leadership in critical technology fields,” Iancu said.

Innovation Alliance Executive Director Brian Pomper added: “With a simple, single-sentence clarification of the law, RESTORE will bring balance back to patent law and allow small inventors to stand toe to toe with Big Tech after a court has ruled that Big Tech is stealing their inventions.”

According to the text of the bill, the change would merely shift the burden to the infringer to show that an injunction is not warranted. If an infringer could prove that an injunction would harm the public, for instance, it would not be issued.

“A lack of injunctions has also made litigation more expensive and protracted, burdening parties and the courts,” noted a one-page explainer. “Infringers have no incentive to do the right thing—stop infringing or take a license—if the worst outcome they might face from losing the case is a royalty that they would have had to pay originally.”

Patrick Kilbride, a Policy Fellow at the Center for American Principles (CAP), said in a statement that the bill “clarifies that when patented inventions are commercialized without the patent holder’s authorization the rights holder is entitled to a court injunction to stop the bleeding.”

The RESTORE Act was not one of the bills considered in markup late last year. The Patent Eligibility Restoration Act (PERA), the Promoting and Respecting Economically Vital American Innovation Leadership Act (PREVAIL Act), and the Inventor Diversity for Economic Advancement (IDEA) Act of 2024 were all scheduled for markup, with the latter two ultimately moving forward to the Senate floor.

PERA, which would eliminate all judicially-created exceptions to U.S. patent eligibility law, was withdrawn from consideration in November, with its sponsor, Senator Thom Tillis (R-NC), alluding to forces at work that “may be trying to undermine progress of either PERA or PREVAIL.” Tillis said that, despite such efforts, “it’s going to get marked up, so those [trying to thwart the bills] need to get at the table before they get on the table.”

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