Judge Michel Endorses RESTORE Act to Strengthen Patent Injunctions
The former Federal Circuit chief advocates for a return to pre-eBay injunctions
A prominent voice in the intellectual property community, retired Chief Judge of the Federal Circuit Paul R. Michel, has offered a strong endorsement for new legislation aimed at rebalancing patent enforcement in an editorial for The Tribune-Review.
The proposed bill, the RESTORE Patent Rights Act, addresses the availability of injunctive relief for patent holders, a subject of intense debate since the Supreme Court’s 2006 decision in eBay Inc. v. MercExchange, L.L.C. Judge Michel’s analysis frames the bill not just as a matter of patent law, but as a critical component of U.S. economic and geostrategic competitiveness.
Judge Michel proffers that the current state of patent enforcement creates an imbalance that favors large infringers and hinders the innovation ecosystem, particularly for smaller entities.
The RESTORE Patent Rights Act of 2025
Introduced in the Senate by a bipartisan group including Senators Coons and Cotton, the "Realizing Engineering, Science, and Technology Opportunities by Restoring Exclusive Patent Rights Act of 2025," or RESTORE Act, proposes a direct amendment to 35 U.S.C. § 283, the statute governing injunctions in patent cases.
The core of the bill is the introduction of a new subsection that would establish a rebuttable presumption in favor of granting a permanent injunction once a court has issued a final judgment of infringement.
The text of the proposed amendment states:
(b) Rebuttable Presumption.—If, in a case under this title, the court enters a final judgment finding infringement of a right secured by patent, the patent owner shall be entitled to a rebuttable presumption that the court should grant a permanent injunction with respect to that infringing conduct. (S. 708, SEC. 3)
The bill’s congressional findings assert that the right to exclude is the "core of the patent right" and that courts have historically presumed an injunction should issue upon a finding of infringement (S. 708, SEC. 2, ¶ 3, 5).
The findings also state that the modern judicial approach, which eliminated this presumption, has "created incentives for large, multinational companies to commit predatory acts of infringement, especially with respect to patents owned by undercapitalized entities" (S. 708, SEC. 2, ¶ 7).
The legislation seeks to reverse this trend by codifying the historical presumption, while still allowing an infringer the opportunity to rebut it.
Judge Michel’s Rationale for Reform
Judge Michel’s argument in favor of the RESTORE Act is rooted in the idea that predictable and strong patent enforcement is a prerequisite for technological leadership.
He begins with a stark assessment of the current global situation, stating, "China now leads the U.S. in 37 out of 44 critical technologies." He connects this competitive deficit directly to a weakened U.S. patent system.
According to Judge Michel, the value of a patent has been eroded because the primary right it grants—the right to exclude—is no longer reliably enforced. He notes that post-eBay, infringers often face only monetary damages. "In many cases, the only consequence of infringement is a court-ordered royalty payment to the patent owner. That outcome, while better than nothing, strips patents of their core value" (¶ 3).
For established tech firms, he argues, this transforms infringement from a prohibited act into a calculated business expense.
Companies can infringe on patents with little fear. The worst consequence is typically a damages payment, which for large firms has become just another cost of doing business (¶ 5).
The impact, in his view, is most acute for inventors and startups. Without the credible threat of an injunction to stop ongoing infringement, they "lose leverage for licensing negotiations, struggle to attract investment, and in many cases are unable to commercialize their ideas at all" (¶ 6). This creates an environment where smaller innovators cannot effectively defend their intellectual property against better-capitalized infringers.
Judge Michel contrasts the American approach with that of its chief economic rival, China. While U.S. courts have made injunctions more difficult to obtain, "China has created specialized intellectual property courts, expanded enforcement capacity, and routinely issues injunctions" (¶ 8). He contends these policies have directly contributed to "China’s advancement and attracted global investors." Id.
He characterizes the RESTORE Act as a necessary correction. The bill does not create an automatic injunction but rather a shift in the legal burden.
"It reestablishes the presumption that, when a court finds infringement, the patent owner should be allowed to stop it," he writes. "Courts would retain discretion in exceptional cases, but the burden would shift back to the infringer — where it belongs" (¶ 9).
While acknowledging other important areas for patent reform, such as patent eligibility and proceedings at the Patent Trial and Appeal Board, Judge Michel identifies this bill as the most pressing priority.
He concludes, "If we want to win the technology race of the 21st century, we must restore the rule of law for inventors. Passing the RESTORE Patent Rights Act is the most important step" (¶ 12).
For patent owners and practitioners, his strong support adds significant weight to the legislative effort to recalibrate the enforcement of patent rights.
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