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ed that since ebay monetary damages have become the presumptive remedy in practice he pointedly held that there is no presumptive remedy in patent cases that is e ither a plaintiff seeks an injunction and shows that it meets the ebay test or if not money damages apply on irreparable harm judge gilstrap set forth both parties categorical positions then citing the government s statement of interest rejected them both instead he focused on the facts of the case before him specifically a design win competition between collision and samsung s internal design team although the parties contested what the loss which involved nokia losing interest in collision s technology meant judge gilstrap found that it alongside samsung s continuing infringement was sufficient to constitute irreparable harm on adequacy of monetary damages judge gilstrap again rejected collision s call to apply 18th century equity principles or samsung s call to apply only money damages to relieve the harm of future infringement although not setting forth any specific facts he agreed that the historical underpinnings of the injunction as an equitable remedy in patent cases must not be ignored or swept away therefore on the totality of the record before him judge gilstrap found money damages inadequate the momentum of the decision shifted when it moved to the balance of the hardships however collision relied upon the historical presumption in its favor and asserted that a one month grace period would give samsung ample time to bring its infringement to an end samsung argued that the injunction would impose burdens on its hundreds of thousands of employees but made no argument regarding the burden an injunction would place on the company itself in short both sides failed to present sufficient factual arguments based primarily on the burden of proof that a plaintiff has to establish all of the elements of the injunction test judge gilstrap found that collision s failure of proof prevented the imposition of an injunction the most important consideration on the balance of hardships may have been relegated to a footnote however judge gilstrap noted that collision had made arguments at trial inconsistent with its injunction papers on the centrality of the technology to samsung and the absence of non infringing alternatives that is to prove its case on the merits and increase damages collision had taken positions inconsistent with its argument that samsung would bear no hardship in switching away from its existing technology given the difficulty for a non practicing entity to show any hardship itself the circumstances disclosed in the footnote show the difficult bargain that it must make a lack of non infringing alternatives may bolster a non obviousness case and drive up damages but doom any potential permanent injunction it creates a far more tenuous tightrope walk than that faced by a practicing competing entity that can point to ongoing harm to its business in a way that a non practicing entity cannot finally on the public interest collision again argued for a categorical rule based on a pre ebay decision samsung in contrast asserted that an injunction would drive up the price of smart phones limit consumer choice prevent necessary repairs and prevent wireless carriers from meeting consumer demand as with the balance of hardships judge gilstrap rejected collision categorical rule as inconsistent with ebay s requirement of a showing on each of the elements he found that collision has made no showing that in this case on these particular facts that enforcement of patent rights would be in the public interest again a footnote showed judge gilstrap s thought process he suggested that collision s combined arguments that irreparable harm and insufficiency of monetary damages were established as a matter of law and that harm to samsung would be immaterial to hardships signaled that collision was seeking a return to the federal circuit s pre ebay practice of near automatic injunctions once infringement is found his analysis suggested that collision was being disingenuous in arguing that public interest was the only barrier to an injunction and would also always favor injunctive relief as he put it collision s briefing seems to say heads i win tales you lose judge gilstrap s decision in collision communications v samsung shows just how difficult it is for a non practicing patentee to obtain injunctive relief even with the weight of the department of justice s thumb on the scale on two of the ebay factors all patentees must carefully now weight how their arguments on liability and damages will affect their chance for injunctive relief for a non practicing entity the scales are far more delicately balanced the opinion is carefully worded relying on factual showings rather than the legal absolutes proposed by the parties which makes it less susceptible to reversal on appeal all in all the decision will likely push other non practicing entities back toward putting their eggs in the liability and damages basket if collision cannot get a permanent injunction in this case it will be nearly impossible for a non practicing entity to obtain that relief without the government standing behind it 1 https patentdocs org 2026 03 05 uspto and doj statement of interest in collision communications another thumb on the scale in favor of npe patent plaintiffs united states files statement of interest in patent infringement proceedings may 28 2026 by kevin e noonan the united states recently filed a statement by the antitrust division of the department of justice under the provisions of 28 u s c 517 regarding the interests of united states in pending suits in corteva agriscience llc pioneer hi bred international and agrigenetics inc v inari agriculture inc and inari agriculture nv pending in the district of delaware the statement references the government s concerns with the agricultural sector of the economy citing department of justice competition and agriculture at 6 13 14 23 may 2012 and department of justice antitrust enforcement and agriculture aug 20 2002 the subject matter of this litigation is the seed industry which is highly concentrated with formidable market entry barriers as ongoing consolidation has resulted in a global seed industry dominated by just a few companies the government asserts citing u s department of agriculture more and better choices for farmers promoting fair competition and innovation in seeds and other agricultural inputs at 11 march 2023 usda report examples of this concentration cited in the statement are that according to usda estimates the top four firms bayer corteva chemchina and basf hold 84 of the corn market and 79 of the soybean market elsewhere estimated at 95 and 84 respectively citing usda economic research service concentration and competition in u s agribusiness economic information bulletin no 256 at 11 june 2023 concentration and competition report the issues provoking the government s interest involve corteva s ip rights and the extent of disclosure by patentee under ariad pharm inc v eli lilly and co 598 f 3d 1336 1353 54 fed cir 2010 en banc written description through deposits of its patented seeds with the american type culture collection atcc the statement asserts that t he boundaries of permissible conduct for the public to access and read claimed patented material must be carefully policed to prevent the ip laws from being misused to blunt rather than foster innovation for nascent companies there is a legitimate need for them to accurately identify the extant products and the parameters of the ip protection held by their larger competitors the statement asserts the nature of seeds and plant varieties prevents patents and patent applications to readily provide this information i e by simply reading a patent specification according to the statement leading to the filing of the statement the statement goes on to set forth the need for deposits to satisfy the written description and enablement provisions of 35 u s c 112 a under certain circumstances and for some inventions under the provisions of the budapest treaty on the international recognition of the deposit of microorganisms for the purposes of patent procedure these include biological materials such as seeds insofar as the material cannot reasonably be enabled by a description in written form and thus must instead be described in surrogate form by a deposit that is incorporated by reference into the specification citing enzo biochem inc v gen probe inc 323 f 3d 956 965 fed cir 2002 quoting 37 c f r 1 802 b this has become common practice for such inventions according to the statement citing ajinomoto co v archer daniels midland co 228 f 3d 1338 1345 46 fed cir 2000 this system has the added benefit in the government s view that u s companies can access biological material deposited in foreign depositories and vice versa to satisfy the requirements citing feldman v aunstrup 517 f 2d 1351 1355 56 c c p a 1975 under these circumstances the question arose can you infringe a patent merely by obtaining access to information in a biological deposit corteva sought on summary judgment to prevent disclosure of such biological deposit information by atcc the government s position is that the court should not deem any activity to constitute infringement if it is a means of accessing and reading biological material that the law requires be made publicly available in exchange for a valid patent or other ip protection in the context of atcc deposits corteva s objections run contrary to the provisions of 37 c f r 1 808 a 2 whereby all restrictions imposed by the depositor on the availability to the public of the deposited material will be irrevocably removed upon the granting of the patent these provisions of the law and regulations rebut any allegations by corteva that access thereof by inari is without authorization and thus infringing under 271 the statement argues this is despite the reality that reading deposited biological materials requires something more specifically following the appropriate techniques to excise the patented material from the deposit s under 37 c f r 1 802 b as provided in enzo biochem inc v gen probe inc 323 f 3d 956 965 fed cir 2002 this is so because to do otherwise would prevent the public from receiving meaningful disclosure in exchange for being excluded from practicing the invention for a limited period of time emphasis in statement the statement faults corteva for recognizing the beneficial effects of depositing for protecting its patent rights but ignoring the concomitant public benefit from its disclosure to permit the scope of those rights to be appreciated and the statement notes that regulations require that all restrictions imposed by the depositor on the availability to the public of the deposited material will be irrevocably removed upon the granting of the patent the access inari demands are part of all those restrictions according to the government the statement also recognizes that there can be a requirement for a certain process be followed for public provision of the material emphasis in statement but these should not constitute contractual extra statutory encumbrances imposed by patent holders or the depository in a footnote the statement somewhat ironically says m ost of the filings in this case are under seal and the united states has no access to them supreme court oral argument in hikma v amarin may 26 2026 by kevin e noonan on april 27 the supreme court heard oral argument in hikma v amarin with charles klein representing hikma michael huston representing amarin and malcolm stewart addressing the court on behalf of the government first some statistics charles klein was questioned by the fewest justices justices thomas sotomayor and jackson while malcolm stewart and michael huston were each questioned by seven of the justices justices thomas alito sotomayor kagan kavanaugh jackson and chief justice roberts questioning stewart and justices thomas alito kagan gorsuch kavanaugh barrett and jackson questioning huston in his argument to the court mr klein emphasized that hikma s public statements entirely consistent with selling skinny label generic drug products under section viii cannot actively induce infringement which requires a clear message that necessarily promotes infringement moreover a ctive inducement cannot depend on whether doctors might read infringing instructions into product descriptions that on their face are entirely consistent with non infringing use he concluded these remarks by warning that under the decision below patent lawsuits filed after skinny label product launches will routinely survive a pleading challenge justice thomas began by asking whether it would have been safe for hikma to have said that its generic version of vascepa was approved solely for the severe hypertriglyceridemia sh indication while responding to the question mr klein stated that the earliest press releases did make such statements but that they were not required under the law the justice then asked whether hikma would have been baiting people into inducement had they merely quoted amarin s comments regarding its indications for the drug which mr klein conceded could support a claim if it s a clear message that necessarily promotes infringement the justice concluded his questioning by asking whether the only way to actively induce infringement is overstating or your own statements sound as though the patented use is covered by your product to which mr klein responded by saying that if the generic basically adopts by reference statements by the brand that would encourage the infringing use then that could plausibly state a claim justice sotomayor asked whether hikma was advocating any special rules for section viii cases mr klein responded that the complaint does not pass the standard for plausibility under twombly and iqbal and thus special rules are not necessary the justice noted that such rules are almost impossible in this area because determining whether or not there s active inducement is always contextual the justice further noted that it seems hikma wants the court to change the words the court has used in earlier cases but asks whether hikma wants the court to change the standards for finding inducement mr klein responded that there are obvious alternative explanations in view of the anodyne statements made by hikma and thus there is no need for a change in standards justice jackson the last justice to question hikma s counsel asked for clarification that generics have to have a label that essentially in all relevant circumstances mirrors the brand label except for just admitting the patented indication is that correct and that even if amarin is right that it thinks hikma could have or should have excluded a certain study or included some other information if those aren t on the original label hikma can t do that mr klein assured the...