The Realizing Engineering, Science and Technology Opportunities by Restoring Exclusive Patent Rights Act (RESTORE Patent Rights Act), recently introduced in both houses of Congress, states that a patent owner who prevails on infringement "shall be entitled to a rebuttable presumption" of the court issuing a permanent injunction.  Proponents of the proposed bill point out that injunctions following an infringement ruling fell sharply after the U.S. Supreme Court's 2006 decision in eBay v. MercExchange, which required courts to apply a four-factor test to decide whether an injunction should be issued in a case finding patent infringement.  According to the bill's backers, a rebuttable presumption of an injunction would strengthen the ability of patent owners to deter infringement and enforce their patent rights.

This proposed bill appears to have bipartisan support, but it also has its detractors.  As this article points out, while the eBay case reduced the chances of a permanent injunction for patent owners, one study showed that “the decrease was predominantly among nonpracticing entities." In other words, a competitor who prevails on infringement against another competitor has a similar chance of an injunction as pre-eBay.  The study showed that it is only non-practicing entities whose chances of an injunction have fallen.  Of course, an NPE can range from a company that buys a large patent portfolio for the express purpose of suing technological innovators for infringement, all the way to patentholders like universities and startups, who hold patents for legitimate business purposes besides litigation. 

The question is whether this RESTORE Patent Rights Act, if passed, will actually accomplish its well-intended stated purpose of promoting innovation.  Are there enough patent owners who are denied injunctions in circumstances where monetary damages can't adequately compensate them?  Or will the costs of this proposed legislation outweigh the benefits?  Tech companies, patentholders, and IP litigators should keep a watchful eye on this bill as it's discussed.