IP Law Daily, PATENT NEWS: Sens. Coons, Cotton reintroduce RESTORE Act to protect innovators, (Feb 26, 2025)

By Justin Marcus Smith, J.D.

The Senators said they aim a refreshingly succinct one sentence bill at restoring the rebuttable presumption favoring injunctive relief for patent infringement, but some do not see a problem.

Sens. Chris Coons (D-Del.) and Tom Cotton (R-Ark.) announced their reintroduction of the Realizing Engineering, Science, and Technologies by Restoring Exclusive (RESTORE) Patent Rights Act of 2025. The lawmakers initially introduced the bipartisan bill in 2024. The bill aims to restore the presumption that a patent holder is entitled to a permanent injunction on entry of a final judgment of patent infringement. Reps. Madeleine Dean (D-Pa.) and Nathaniel Moran (R-Texas) introduced a companion House of Representatives bill in 2024. However, not everyone agrees that the legislation is necessary or that reduced injunctive activity is even a problem if it pertains to fewer abusive filings by patent trolls.

Protecting innovators. Sen. Cotton reiterated that the legislation will help to rectify the “wrongheaded” 2006 Supreme Court decision in eBay v. MercExchange, L.L.C., 547 U.S. 388 (2006). That decision created a four-factor test to determine whether an infringement case warrants entry of a permanent injunction. The senators and other observers contend the test improvidently altered the longstanding presumption that courts will issue injunctive relief to stop patent infringement.

The proposed legislation will, according to Sen. Cotton, “stop the infringe-now, pay-later model in its tracks.” He said it will undo the damage of the eBay decision by reinstating the rebuttable presumption that an injunction is warranted after a court makes a final ruling of patent infringement.

At the senators’ initial introduction of the bill, in July 2024, Sen. Coons urged that the core patent right to exclude, enshrined from the founding of the country, is “meaningless when courts do not enforce that right.” Reps. Dean and Moran echoed the senators in expressing concerns about preserving U.S. leadership in innovation.

Fewer injunctions. Sen. Cotton’s present press release contended that a recent study found requests for permanent injunctions dramatically subsided in the wake of eBay v. MercExchange. See Kristina M.L. Acri née Lybecker, Injunctive Relief in Patent Cases: the Impact of eBay (June 14, 2024), available here. The press release cited the study for especially sharp drops in requests and grants of permanent injunctions to licensing patent owners like universities and research clinics. Sen. Coons previously referenced the study at a December 2024 subcommittee hearing, but a witness at that hearing cast doubt on the study numbers.

Hearing disagreement. As previously reported, in December 2024, witnesses at a Senate subcommittee hearing about the proposed legislation strongly disagreed over the extent to which eBay v. MercExchange has reduced the number of applications for—and grants of—preliminary injunctions in patent cases (see IP Law Daily, Dec. 20, 2024). They also disagreed whether a reduction in preliminary injunctive relief has had the beneficial impact of reducing abusive patent litigation. Jorge L. Contreras, Director of the Program on Intellectual Property and Technology Law at the University of Utah, suggested that the significance of reduced injunction activity was overblown because it mainly involved chastened patent trolls. However, Sen. Thom Thillis (R., N.C.) joined Sens. Cotton and Coons in expressing his support for the bill at that hearing.

Endorsements. Sen. Coons’ July 30, 2024, press release indicated that a number of organizations have endorsed the bill, including: Innovation Alliance, Alliance of U.S. Startups & Inventors for Jobs, Association of University Technology Managers, Council for Innovation Promotion, Americans for Limited Government, Eagle Forum, Market Institute, and Conservatives for Property Rights.

Sen. Coons’ office has posted a one-page summary of the bill on its website.

News: Patent GCNNews