Feds Use Fortress-Backed NPE Suit To Encourage Injunctions

Sterne Kessler’s William Milliken, director in Sterne Kessler’s Trial & Appellate and Electronic Practice Groups and co-chair of the appellate practice, spoke to Law360 on the USPTO’s recent support of injunctions for nonpracticing entities and what that could mean for future cases.

In a case out of Texas, the USPTO and U.S. Department of Justice’s antitrust division filed a statement of interest coinciding with the current administration’s effort to protect patent owners from those who may infringe or challenge their patents. The agencies are now advocating for patent injunctions, which became rare after the 2006 Supreme Court decision eBay Inc. v. MercExchange LLC.

Milliken stated, “They seem to be saying that the inherent difficulties in valuing patent rights, and the nature of the injury of the right to exclude that occurs when one’s patent is infringed, counsel more strongly in favor of an injunction in the patent context than the considerations might counsel in other cases.”

With the question of injunctions becoming a more standard part of review, Milliken mentioned that the courts could keep their fast schedules while fighting over injunctions, and that the USPTO may continue denying PTAB petitions as it has been.

Milliken said, “You essentially end up in a world that looks a lot like the pre-eBay world, where there were not easy administrative routes to try to invalidate patents after they’re granted, and it’s easier to get injunctions. That’s a much friendlier world for patents than we’ve had since the America Invents Act was passed and since eBay.”