On July 11, 2025, the non-practicing entity (NPENon-Practicing Entity. A broad term associated with trolls but now disfavored because it includes universities and legitimate technology developers that seek to license technology in advance rather than after a producing company has independently developed it.) Radian Memory Systems LLC dropped a request for injunctive relief against Samsung after the defendant provided new evidence that undercut the immediate risk needed to justify such an order. The case, centered around the alleged infringement of two patents covering flash solid-state drives, has raised eyebrows after the federal government cited it to defend NPEs’ general right to obtain injunctive relief, even under the post-eBay framework.
In a June 24th Statement of Interest, lawyers from the U.S. Department of Justice and the U.S. Patent and Trademark Office (USPTOUnited States Patent and Trademark Office. See also PTO.) argued that NPEsNon-Practicing Entity. A broad term associated with trolls but now disfavored because it includes universities and legitimate technology developers that seek to license technology in advance rather than after a producing company has independently developed it. like Radian—that is, entities that do not innovate or bring any products to market—can still qualify for injunctive relief based on the four-factor test outlined in the Supreme Court’s eBay decision. That four-factor test set benchmarks which all petitioners must prove before being granted injunctive relief, including that “irreparable harm” was suffered and that monetary damages alone are inadequate.
DOJ argued:
Patent owners who rely on licensing as part of their commercialization strategy often desire to control the scope of a license. That control, and the right to exclude that it provides, is a critical component of the patent right. Absent injunctive relief, a patent owner loses this exclusivity and its associated bargaining power, which can constitute irreparable harm.
But this position misses the point. eBay was designed to prevent injunctions from being used as blunt instruments by patent holders in order to extract value that isn’t due to their patents, which is why the Supreme Court required petitioners to demonstrate a meaningful showing of irreparable harm in the first place. (For more detail on how injunctions allow patent holders to extort more than the value of their technology, I recommend Mark Lemley and Carl Shapiro’s article Patent HoldupAn attempt by a patent owner, by threatening litigation, disproportionate damages, or injunction/exclusion of a product, to extract payment from a producing company greater than the value of the patented technology. and Royalty Stacking—or my testimony to the Senate Judiciary Committee last year.)
NPEsNon-Practicing Entity. A broad term associated with trolls but now disfavored because it includes universities and legitimate technology developers that seek to license technology in advance rather than after a producing company has independently developed it. don’t lose market share or fall behind on R&D like practicing companies do if their patents are infringed. After all, they are not in the business of making products. The harm they suffer, if any, is predominantly financial—and often speculative. Monetary damages remain the proper remedy for cases filed by NPEsNon-Practicing Entity. A broad term associated with trolls but now disfavored because it includes universities and legitimate technology developers that seek to license technology in advance rather than after a producing company has independently developed it..
That’s why, since eBay, legitimate operating companies have continued to access injunctive relief, while NPEsNon-Practicing Entity. A broad term associated with trolls but now disfavored because it includes universities and legitimate technology developers that seek to license technology in advance rather than after a producing company has independently developed it. have seen their ability to impose injunctions curtailed.
As I wrote in Patent Progress a few years ago, before eBay, plaintiffs who won on the merits were granted permanent injunctions in 89.1% of cases. That figure has only slightly declined post-eBay to 85.2%. But once you dig deeper, the picture becomes clearer: high-volume plaintiffs (HVPs, a reliable proxy for NPEsNon-Practicing Entity. A broad term associated with trolls but now disfavored because it includes universities and legitimate technology developers that seek to license technology in advance rather than after a producing company has independently developed it.) saw their success rate drop from 88.8% to 62.5%. They also began requesting injunctions far less frequently—down from 52.9% to just 29.6% of contested wins. Meanwhile, operating companies (non-HVPs) saw only a slight dip in how often they requested injunctions, and they still received an injunction 86.5% of the time they requested one.
In other words, the eBay standard is working exactly as intended—preserving injunctive relief for companies that actually bring products to market and serve the public interest, while preventing its misuse by bad-faith actors who see injunctions as nothing more than a tool to extract outsized settlements.
The fact that Radian withdrew its injunction request after receiving new evidence from Samsung suggests that courts are applying these standards pragmatically—and that Radian recognized it couldn’t prove the irreparable harm required to justify injunctive relief. So patent quality advocates are understandably puzzled that DOJ chose to intervene, rather than allow the courts to apply precedent.
At a time when innovators face increased litigation abuse, the last thing they need is a policy shift that empowers bad-faith actors who contribute nothing to the economy and stand in the way of actual innovation.
