By: Christopher S. Storm*
Abstract
Patent industry insiders are lobbying Congress to liberalize access to patent injunctions based on claims that the Supreme Court changed the law in eBay Inc. v. MercExchange, LLC. These claims are misleading, at best. Congress never authorized automatic or presumed access to injunctive relief for patent infringement. For three decades, Congress denied access to patent injunctions before eventually permitting them in exceptional cases. Although Congress consistently rejected proposals to liberalize access to patent injunctions, the patent industry bypassed Congress by convincing sympathetic jurists to adopt new injunction standards favored by the patent bar. These extra-statutory injunction standards persisted until 2006, when eBay returned patent injunctions back to their statutory moorings. Nonetheless, the anti-eBay movement has convinced several lawmakers to reject a unanimous Supreme Court and abandon centuries of congressional policy. How? The same way the patent industry convinced Congress to reverse other statutory limitations on patent remedies in 1819, 1870, and 1922. Although rarely admitted publicly, the American patent industry has influenced, controlled, and nullified legislative and judicial regulation of patent remedies for over two centuries. Thanks to this history, patent remedies and patent industry self-regulation are now inseparable topics. Every statute, every case, and every precept from the history of American patent remedies compels the same question: did patent industry hegemony prevail over congressional primacy? The anti-eBay movement avoids this question by paltering narratives about life before eBay without disclosing patent industry influence on pre-eBay injunction policy. This Article reunites the history of American patent injunctions with the history of patent industry self-regulation to explain why eBay is both legally correct and the target of patent industry attacks.
*Christopher Storm is a patent industry insider with two decades of experience as a registered member of the patent bar. Mr. Storm has served patent industry customers both as in-house counsel for transportation and technology companies and as a law firm associate. He has an M.S. in technology commercialization and a B.S. in aerospace engineering from the University of Texas and his J.D. from the University of Houston Law Center. The opinions expressed in this Article reflect the author’s independent academic views and are not attributable to any employers, clients, or other patent industry customers.
The author is grateful for initial feedback from Jorge Contreras, for reactions from co-panelists at a 2025 Federalist Society webinar on the RESTORE Patent Rights Act, and for commentary and suggestions from attendees at the 2025 Intellectual Property Scholars Conference. The author would also like to thank the research staff at the U.S. National Archives and Records Administration and the Library of Congress for their assistance.