Restoring the Right to Exclude: A Comprehensive Analysis of the RESTORE Patent Rights Act of 2025

Introduction

Innovation is one of the most significant drivers of growth, prosperity, and technological progress in the United States. Inventors, universities, startups, and research institutions engage in extensive research and development efforts, often at great cost, to create transformative products and processes. A critical pillar underpinning these endeavors is the nation’s patent system, which grants inventors a property right—the exclusive use of their inventions for a limited term—in exchange for public disclosure. This bargain encourages inventors to share new knowledge and discoveries, thereby promoting collective advancement.

For much of the nation’s history, courts strictly enforced this exclusivity. Once patent owners proved infringement, an injunction would typically issue, preventing unauthorized use of the patented invention. However, the Supreme Court’s 2006 decision in eBay Inc. v. MercExchange, LLC upended this tradition by imposing a four-factor equitable test that has substantially limited the availability of permanent injunctions in patent cases. Many innovators now face a challenging environment in which powerful market players can continue using infringed technology by simply paying an eventual damage award rather than negotiating a proper license. This has not only raised concerns about fairness but has also undermined confidence in the patent system’s ability to ensure genuine exclusivity for inventors.

In response to these concerns, bipartisan legislators introduced the Realizing Engineering, Science, and Technology Opportunities by Restoring Exclusive (RESTORE) Patent Rights Act of 2025 (Full Bill Text) to restore a rebuttable presumption of injunction in patent infringement cases. The Act seeks to reaffirm the constitutional principle of exclusivity that has long been a cornerstone of American patent law. By placing the burden on adjudged infringers to rebut the presumption favoring injunctions, the RESTORE Act aims to deter predatory infringement, encourage fair licensing practices, and reestablish confidence in the integrity of the United States patent system.

Below is an expanded analysis of the RESTORE Act, including background information on the relevant historical context, legal framework, and policy implications of restoring the right to exclude.

I. The Historical Significance of Injunctive Relief in Patent Cases

A. The Exclusive Right and Its Importance

The right to exclude others from making, using, selling, or importing an invention is the essence of the patent bargain. An inventor discloses the details of the invention in exchange for a period of exclusivity, thereby incentivizing scientific and technological progress through public disclosure. This property right is enshrined in the United States Constitution, reflecting the Framers’ recognition that a secure system of exclusivity inspires investment in innovative endeavors.

Historically, courts in the United States and England recognized that this right to exclude has limited value if an infringer can continue using the patented invention with impunity. Damages may compensate for past harm, but they do not necessarily address ongoing or future harm. Consequently, courts routinely granted injunctions once infringement had been established, absent extraordinary circumstances. This long-standing norm prevailed for over two centuries, ensuring that patent owners had a definitive remedy to stop unauthorized use of their inventions.

B. Pre-eBay Legal Framework

Before the Supreme Court’s decision in eBay Inc. v. MercExchange, LLC, courts generally presumed that the harm caused by patent infringement could not be fully remedied by damages alone. The Federal Circuit embraced this presumption, holding that once a patent owner proved infringement of a valid patent, irreparable harm was presumed, and an injunction would normally issue. This practice aligned with the property-based nature of patents and the long-standing rule that, in the absence of compelling countervailing interests, owners of valid patents had the right to stop others from practicing their inventions.

II. eBay v. MercExchange (2006) and Its Fallout

A. The Supreme Court’s Four-Factor Test

In eBay v. MercExchange, the Supreme Court introduced a four-factor equitable test for determining whether to grant a permanent injunction. A patent owner must prove:

1. Irreparable harm in the absence of an injunction;

2. Inadequacy of monetary damages to compensate for that harm;

3. A balance of hardships favoring the patent owner; and

4. No disservice to the public interest.

Although the four-factor test may appear reasonable, the shift away from the traditional presumption of irreparable harm had significant practical consequences.

B. How eBay Changed the Landscape

In practice, eBay placed a substantial burden on patent owners to demonstrate irreparable harm and the insufficiency of monetary remedies. Prior to 2006, once validity and infringement were established, an injunction was typically presumed. Post-eBay, owners must prove that monetary damages, such as a royalty, are inadequate. Courts have often denied injunctions to entities not practicing their inventions commercially, reasoning that a monetary award is sufficient to compensate these patent owners.

This new approach has proven particularly challenging for universities, research institutions, and startups that rely on licensing revenue and do not have the resources to litigate indefinitely. Without a credible threat of an injunction, large infringers are often encouraged to adopt a “pay later if necessary” attitude rather than negotiate in good faith.

C. Incentivizing Predatory Infringement

One of the most frequently cited critiques of eBay is that it incentivizes larger, well-funded parties to engage in deliberate infringement. Instead of attempting to secure a fair license at the outset, they often calculate that any court-imposed royalty at the end of a long litigation process would be similar to what they would have paid had they negotiated. Since there is no realistic threat that they will be enjoined, these infringers can continue exploiting the technology and profiting from it during the lengthy period of litigation and appeal.

D. Empirical Observations Post-eBay

Academic studies and industry data indicate a substantial decline in both requests for and grants of permanent injunctions. Among patent owners who manufacture products, requests for injunctions have dropped by approximately 65 percent, and grants have also declined markedly. For licensing patent owners, including universities and research labs, requests plummeted by 85 percent and grants by 90 percent. These figures suggest that eBay effectively diluted the core patent right to exclude and emboldened large companies to infringe rather than negotiate fair licenses.

III. The Realizing Engineering, Science, and Technology Opportunities by Restoring Exclusive (RESTORE) Patent Rights Act of 2025

A. Overview of the Act’s Text and Purpose

The RESTORE Patent Rights Act (Full Bill Text; One-Pager) is concise yet impactful. It reinstates a rebuttable presumption that a permanent injunction is appropriate once a court issues a final judgment of infringement. By reversing the burden of proof, the Act clarifies that the default remedy for patent infringement is an injunction unless the infringer can demonstrate compelling reasons to deny one.

B. Legislative Findings

The Act opens with findings that emphasize the constitutional basis for granting inventors an exclusive right. It underscores how two centuries of legal tradition supported a near-automatic injunction after a finding of infringement, a practice disrupted only by the Supreme Court’s eBay decision. Legislators advancing the RESTORE Act assert that reestablishing this presumption will revitalize the constitutional promise of exclusivity.

C. Legal Mechanism: A Rebuttable Presumption

By codifying a rebuttable presumption of injunctive relief, the RESTORE Act harmonizes patent law with other property doctrines. For real property, if a court finds a trespass, the usual remedy is to enjoin further trespassing. The same principle should apply to patent infringement. This measure restores the notion that monetary remedies alone are insufficient to protect a patent owner from ongoing or future unauthorized use of the invention.

D. Potential Impact on Litigation Strategy

When an injunction is the likely outcome, potential infringers have more incentive to negotiate a fair license rather than engage in protracted litigation. This shift in the legal landscape could lead to:

1. Earlier settlements and licensing agreements;

2. Reduced litigation costs, since parties will have stronger motivations to avoid drawn-out courtroom battles; and

3. Diminished opportunities for “infringe now, pay later” strategies.

IV. Why Injunctions Are Necessary for Justice and Fairness

A. The Constitutional Dimension

Supporters of the RESTORE Act highlight the Constitution’s language, which grants inventors the “exclusive Right” to their discoveries. If courts systematically deny injunctions, the patent effectively becomes a compulsory license. Some scholars argue that such a practice may run afoul of the Constitution’s Takings Clause, especially if patent owners have no meaningful recourse to stop ongoing or willful infringement.

B. Equity and Fairness to the Inventor

An inventor’s investment of time, effort, and resources is not fully acknowledged by a royalty alone. When a large entity infringes a patent and continues to do so during protracted litigation, the inventor is deprived of the ability to control the invention’s use. Universities and research institutions, which depend on licensing fees to fund further research, are especially vulnerable under a system where the infringer can force a de facto license by paying only a modest royalty after years of profit.

C. The Practical Need to Stop Ongoing Harm

Money damages address only past harm. If patent law is to remain a robust mechanism for fostering innovation, it must be able to stop ongoing infringement in a timely manner. In high-tech or biotech industries, a competitor’s continued unauthorized use of a patented invention can have irreversible market consequences.

V. The Many Negative Consequences of eBay: Costs, Inefficiencies, and a Chilling Effect on Innovation

A. Refusal to Settle and Endless Litigation

Many large companies find it advantageous to refuse settlement because the expected legal cost of prolonged litigation may be lower than a fair-market licensing fee. This approach is feasible only because these entities are confident that an injunction is unlikely. Meanwhile, smaller entities may be forced to settle on unfavorable terms or abandon the case altogether.

B. Increased Costs and Judicial Inefficiency

Without a genuine threat of an injunction, parties remain entrenched in litigation for far longer. This leads to more discovery, more motions practice, and higher legal fees. Courts also bear the burden of crowded dockets. If injunctions were more readily granted, many disputes might reach earlier resolutions.

C. The Chilling Effect on Startups, Universities, and Independent Inventors

Startups and universities often rely on patent portfolios to secure investment and fund research. If a patent cannot be effectively enforced through an injunction, the patent’s perceived value declines, discouraging venture capital and other funding sources. This environment can hinder the development of transformative technologies by eroding the confidence of innovators and investors.

D. The Broader Economic and Geopolitical Ramifications

The United States has traditionally been a global leader in patent protection. If the system fails to protect inventors’ exclusivity, domestic innovation may suffer, and overseas jurisdictions with more robust enforcement could attract investment. In fields that are vital to national security or international competitiveness—artificial intelligence, quantum computing, and 6G communications—strong patent enforcement is critical.

VI. The Unconstitutional Nature of the Lack of Injunctions

A. Takings and Due Process Arguments

Some patent scholars argue that routinely denying injunctive relief converts the exclusive right into a forced license, potentially implicating the Fifth Amendment’s Takings Clause. Although courts have not adopted that reasoning outright, the concern highlights the tension between judicially managed “balancing” tests and the constitutional guarantee of exclusivity in intellectual property.

B. The Role of Congress in Clarifying Patent Remedies

Because the Constitution empowers Congress to regulate patents, lawmakers have the authority to restore the established norm of a presumption of injunctive relief. The RESTORE Act fulfills this legislative function, reaffirming that an injunction is the typical remedy for proven infringement.

VII. How the RESTORE Act Addresses These Concerns

A. Rebalancing the Scales for All Stakeholders

By reinstating the presumption of an injunction, the RESTORE Act provides a significant deterrent to predatory infringement. This correction in legal doctrine benefits universities, small businesses, and independent inventors that are particularly vulnerable to prolonged legal battles. It also provides clarity to large companies, which will be more inclined to negotiate in good faith at earlier stages.

B. Encouraging Efficient Licensing and Reducing Litigation Costs

When the expected outcome of a final judgment of infringement is an injunction, defendants are more inclined to seek a license. This dynamic can reduce the length of litigation, conserve judicial resources, and allow inventors to receive fair compensation at an earlier point in time.

C. Affirming the Constitution’s Spirit and the Historical Norm

The Act returns patent enforcement to the principle that prevailed for over two centuries, thereby aligning with the spirit of Article I, Section 8 of the Constitution. If the right to exclude is foundational to encouraging invention, then injunctions must remain the core remedy for infringement.

D. Preserving Judicial Discretion for Exceptional Cases

The RESTORE Act’s presumption is rebuttable, ensuring that courts still have the flexibility to deny injunctions in extraordinary situations. However, the burden of proof in such instances lies with the infringer, who must show why an injunction is unwarranted.

VIII. Potential Criticisms and Rebuttals

A. Concerns About “Patent Trolls”

Some critics argue that non-practicing entities might use the threat of injunctions to extract nuisance settlements. However, the RESTORE Act applies only after a final judgment of infringement on a valid patent, meaning any accused infringer has already lost on the merits. This minimizes the concern that patent owners will wield injunctions in frivolous suits.

B. Potential Price Increases for Consumers

Critics have claimed that strict injunctions might remove important products from the market or drive prices up. In practice, companies typically seek to avoid injunctions by signing a license. Thus, the Act preserves consumer access to products while ensuring that the rightful patent owner is compensated.

C. Potential International Retaliation

Some observers worry that restoring robust patent injunctions might spark global retaliatory measures. However, strong intellectual property enforcement has long been an asset to the United States, encouraging foreign innovators to patent their inventions here. Several countries, including Germany, already have strong presumptions favoring injunctions upon a finding of infringement, and their innovation sectors remain vibrant.

IX. Conclusion

The Realizing Engineering, Science, and Technology Opportunities by Restoring Exclusive (RESTORE) Patent Rights Act of 2025 (Full Bill Text) addresses a significant structural problem in the patent system—namely, the difficulty that many patent owners encounter in obtaining injunctions after eBay v. MercExchange. By codifying a rebuttable presumption that injunctions should issue once infringement is established, the Act realigns patent enforcement with the Constitution’s mandate for an “exclusive right” and two centuries of judicial practice.

This shift promises to deter predatory infringement, encourage earlier settlements, and restore trust in the fundamental premise of the patent system: that innovators who invest in research and development deserve meaningful protection. Although some criticisms persist regarding potential effects on costs and market access, the RESTORE Act maintains the judiciary’s discretion to consider exceptional cases. On balance, it reaffirms the nation’s commitment to rewarding inventors for their ideas and ensuring that the patent system remains a robust driver of American innovation and prosperity.

Final Thought:

By reinvigorating the right to exclude, the RESTORE Act seeks to preserve the core incentive structure that has historically propelled the United States to global leadership in technology, science, and entrepreneurship. Patent owners who can rely on an injunction after a final judgment of infringement are more likely to invest in and develop the next generation of transformative ideas, sustaining the nation’s reputation as a preeminent source of groundbreaking innovation.