US senator pushing for bill to return US patent protections to international norms

Precedent set in 2006 Supreme Court eBay ruling has seen US dominance for patent litigation filings decline, writes McKool Smith’s Alfonso Chan

The US has fallen behind China in patent litigation filings Shutterstock

According to recent reports, Senator Chris Coons is looking for a co-sponsor before introducing a bill that seeks to lift the US judiciary up to international norms by restoring permanent injunctions in patent litigation. The bill would overturn the precedent created by the 2006 Supreme Court case eBay v. MercExchange, in which the court unanimously found that patent holders should not be automatically granted injunctive relief for a finding of infringement at a district court.

Since the Supreme Court severely limited injunctions in eBay, the World Intellectual Property Organization (WIPO) has reported increasing numbers of inventors choosing to enforce their patents in courts outside the US, while US patent lawsuit numbers have been declining.

In 2014, China established specialised intellectual property tribunals and in 2023, the European Union established the Unified Patent Court, both in contrast to the US’s generalist court system. Patent owners are keenly aware that, unlike in the United States, in China and Europe it is the rule, not the exception, for courts to permanently enjoin parties found to infringe a valid patent.

As a result, China has already surpassed the US in the number of patent litigations filed, and Europe is quickly gaining ground. China adjudicates more than 10,000 patent litigations annually compared to 3,821 US patent litigations in 2022, while Europe’s Unified Patent Court is already attracting numerous cases after its recent opening on 1 June. 

China and Europe are also significantly faster than the US: China’s IP tribunals and Europe’s Unified Patent Court take 12 months or less to try a case and issue judgment, while the median time interval in US federal district courts exceeds 33 months.

If Senator Coons fails to legislatively overrule eBay, inventors will continue the trend of seeking patent protection from China and Europe rather than the US. But if Senator Coons is successful and the availability of patent injunctions is restored, the value of a US patent will increase and the US’s leadership as the world’s protector of patent rights will be strengthened. 

Alfonso Chan is a principal at McKool Smith and a trial lawyer focusing on litigating complex IP cases.

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