Categorical Rules Cut Both Ways: Originalist Equity, NPE Status, and the Symmetry of eBay’s Four-Factor Test
Patent – Patently-O 2026-05-20
by Dennis Crouch
I previously wrote about this case when the permanent injunction was pending. Judge Gilstrap has now denied the motion, but the opinion also indicates some instances when non-practicing entities (NPEs) could block ongoing infringement.
Judge Gilstrap's opinion takes a middle ground.
- It rejects the categorical rule Collision sought, that ongoing patent infringement presumptively constitutes irreparable harm as a matter of law under 18th-century Chancery practice (as reinterpreted through Trump v. CASA, 606 U.S. 831 (2025)).
- And it also rejects Samsung's opposite position, that a non-practicing patent owner cannot establish the harms required under eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006).
The first two eBay factors are typically the most important: irreparable harm and inadequacy of monetary relief. Here, the court found that Collision proved both of those, but failed on the trailing two: balance of hardships and public interest. With the result of the injunction being denied.
Although not a party, the USPTO/DOJ filed briefing (a statement of interest) in the case arguing that non-practicing patent owners should not be categorically barred from injunctive relief, and that the inherent difficulty of valuing patents and calculating damages can itself support a finding of irreparable harm under certain circumstances. The government at the same time declined to endorse Collision's more aggressive theory that ongoing infringement constitutes irreparable harm as a matter of law under 1789 equity principles. Ultimately, Judge Gilstrap appears to have adopted the government suggestions.
Despite denying injunctive relief, the key passage from the decision is the court's flat rejection of any NPE carve-out: "this Court rejects the position that a non-practicing entity can never establish irreparable harm. . . . The USPTO does not issue patents with a gold seal if the holder practices the patents, but issues patents with only a silver seal when they do not." A non-practicing patentee can satisfy the eBay factors, the court held, even if it usually will not.
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