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Irreparable Harm Reimagined: The Government’s Patent Intervention in East Texas

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In a bold and unusual move, the DOJ’s Antitrust Division and the USPTO have jointly filed a <a href="https://www.justice.gov/atr/media/1404506/dl?inline">Statement of Interest</a> in a patent case – not before the Supreme Court or Federal Circuit, but in a district court in East Texas. The case is pending before Judge Gilstrap, who oversees more patent cases than any other judge in the country. This is not just another amicus brief. It is a calculated intervention aimed at reshaping how courts evaluate preliminary injunctions in patent litigation.

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A patent provides the right to exclude others from practicing the claimed invention. To obtain a preliminary or permanent injunction, the Supreme Court requires that the plaintiff demonstrate irreparable harm (among other factors). Traditionally, irreparable harm has been defined as an injury that cannot be adequately remedied by monetary damages. This has often meant that non-practicing entities (NPEs), which are those that license patents but do not manufacture or sell products, face an uphill battle in securing injunctive relief. Courts have been reluctant to grant injunctions to NPEs on the theory that their harm is purely financial and thus compensable and not irreparable.

In Radian v. Samsung, currently pending before Judge Gilstrap, the plaintiff, which is an NPE, is seeking a preliminary injunction. In their Statement of Interest, the Antitrust Division and USPTO argue that even NPEs can suffer irreparable harm when infringement undermines their ability to control licensing terms, market positioning, and strategic relationships. They emphasize that a patent is a unique asset and calculating a “reasonable royalty” is often speculative and imprecise. This uncertainty in valuation makes it difficult to determine fair compensation, which in turn renders the harm effectively irreparable.

Rather than pushing for legislative reform, the administration is using the courts – and specifically Judge Gilstrap’s court – to advance a more expansive view of injunctions. As of 2024, Judge Gilstrap presides over roughly 21% of all U.S. patent infringement cases filed, making his courtroom in Marshall, Texas a strategic focal point for shaping patent jurisprudence.

If Judge Gilstrap adopts the Antitrust Division and USPTO’s reasoning, it could mark a shift in how courts evaluate irreparable harm, particularly for NPEs, and could increase the power and threat of injunctions in patent cases. Such a shift would strengthen the hand of all patent holders, potentially restoring some of the leverage that has eroded since the Supreme Court’s 2006 decision in eBay v. MercExchange. For now, all eyes are on Marshall.

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