Patent Lawyer Buoyed in Pursuit of 1700s Injunction Argument

A Dallas lawyer’s years-long push to make it easier for certain patent owners to get injunctions based on 18th Century English chancery law recently got two shots in the arm.

The US Patent and Trademark Office filed a rare statement of interest in Radian Memory Systems LLC’s case against Samsung Electronics Co. in Texas federal court last month, urging the judge to break from the modern practice of routinely denying injunctions to non-practicing entities that own, license, and assert patents but don’t make associated products.

Three days later, the US Supreme Court embraced a historical approach in its analysis of nationwide injunctions blocking executive orders. The majority in Trump v. CASA held judges must ask whether such a remedy is “sufficiently ‘analogous’” to what English chancery judges would’ve granted three centuries ago.

That approach mirrors what attorney Austin Curry has pushed multiple courts to adopt—most recently in Radian’s case—seeking to upend the two-decade status quo that emerged after the Supreme Court’s 2006 decision in eBay v. MercExchange. Following that ruling, courts have predominately limited NPEs to damages awards.

Curry, a partner at Caldwell Cassady & Curry, advanced a historical argument that the English legal practice at the US’s founding requires a more patent owner-friendly approach to injunctions. Despite initial skepticism and the Federal Circuit’s dismissal of an appeal raising the issue last year, Curry said the new PTO brief and high court’s opinion weigh in his client’s favor.

Historical Journey

Curry told Bloomberg Law the historical argument came out of years of research on the laws of equity. It started in 2022 when he bought a 19th century equity treatise and brought it with him on vacation.

“While my kids were in the pool I was in a lounge chair with a pen and highlighter,” he said. “The topic really pulled me in.”

The treatise suggested courts in the US “looked to the English High Court of Chancery at the time of the revolution” for guidance on injunctions. But Curry said he wasn’t sure whether that approach was outdated.

Back in Dallas, Curry said he began researching whether centuries-old English Chancery court opinions remained good law. The Supreme Court’s 1999 opinion in Grupo Mexicano suggested they are, setting him off on a quest to study how the old rulings treated injunction requests in patent cases and what they said about “irreparable harm.”

Curry purchased old, rare law books and visited the National Archives in London to peruse late-1700s source material in person.

The eureka moment came, Curry said, when he found a law review article written by Lewis & Clark Law School’s Tomás Gómez-Arostegui, who’d already done much of the painstaking archival research.

“I was blown away,” Curry said. “I thought, ‘Oh my God, this is everything I needed. I emailed my partners and said, ‘This is the Holy Grail.’”

Radian v. Samsung

In eBay, the majority held that there isn’t a “categorical rule” either for or against injunctions issuing to NPEs.

Patent owner Vidstream, represented by Curry, pushed for an injunction against X Corp., but was rejected last year by a Texas district judge. Vidstream appealed based on Curry’s historical argument, but a Federal Circuit panel dismissed it, saying the argument “clearly runs afoul” of eBay.

Radian, which owns and licenses flash memory patents, sued Samsung for infringement in December in the Eastern District of Texas, and sought a preliminary injunction four months later.

It urged Judge Rodney Gilstrap to block Samsung’s sales of certain flash memory products, arguing lower courts have misapplied eBay and ignored patent practice at the time of the founding, which supports the idea that ongoing infringement of a patent creates “irreparable harm.”

Samsung countered in late May that “prevailing precedent dooms” Radian’s motion. Radian mischaracterized current patent practice as amounting to the sort of bright-line rule that eBay prohibits, Samsung argued.

Samsung contends courts should consider a patent owner’s business model and its “non-use” of patents as part of a larger fact-intensive irreparable harm analysis. Radian, Samsung said, was seeking the type of categorical rule in favor of NPE plaintiffs that’s “indistinguishable” from what the Supreme Court has rejected.

Gilstrap set an evidentiary hearing for July 18.

‘Far-fetched’

Some legal scholars expressed skepticism Radian’s argument will carry the day.

Jorge Contreras, a law professor at the University of Utah who’s written extensively about the use of injunctions in patent cases, called the company’s theory “far-fetched, to say the least,” especially in the context of a preliminary injunction issued before patent infringement has been definitively established.

Some patent law scholars argue “preliminary and permanent injunctions should be treated the same today, as they were 300 years ago,” Contreras noted. But said he doesn’t buy the argument.

“Dredging up centuries-old precedents to support a view that’s in direct conflict with that of the Supreme Court of 2006 to 2008 is unreasonable,” he said.

Contreras said the government statement filed in the case hearkens back to the first Trump administration, when Justice Department lawyers set policy and made statements critical of eBay and favoring more injunctions for patent owners. But he said the crux of its argument—that difficulties in calculating infringement damages mean injunctions should be more readily available—seemed like a “last ditch” effort.

Kristen Jakobsen Osenga, a law professor at the University of Richmond cited by both Radian and the government’s statement of interest, said she’s heartened to see the government advocate for making injunctions more broadly available but “I don’t think I’d go as far as to say the ground has shifted.”

“I love to see more of these arguments being made because I do think the lack of injunctive relief is a problem,” she added, but said she thinks convincing Congress to update the Patent Act is the more “reliable” fix.

The case is Radian Memory Sys. LLC v. Samsung Elecs. Co., E.D. Tex., 2:24-cv-1073.