The Federal Circuit Didn’t Reach the Merits, but IS There Something Wrong with the Language on the Cover of Newly-Issued Patents?
The Federal Circuit never got to the real issue in its recent precedential opinion in US Inventor v. Squires, No. 2024-2378 (Fed. Cir. Aug. 21, 2026). Multiple inventor associations had sued the USPTO, contending that language on the cover of issued patents was misleading, and should be changed. The Federal Circuit affirmed a dismissal of the suit on the grounds that the inventor organizations lacked standing to challenge the USPTO language. But that leaves open the underlying question: Is there something wrong with the USPTO’s language on patent covers?
Every newly-issued patent includes a cover page stating that the patent:
grants to the person(s) having title to this patent the right to exclude others from making, using, offering for sale, or selling the invention throughout the United States of America or importing the invention into the United States of America.
The problem that the inventor organizations (and others) have with this language is that they contend that it is inaccurate after the Supreme Court’s decision in eBay v. MercExchange, 547 U.S. 388 (2006). In that case a unanimous court rejected the Federal Circuit approach that injunctions against infringers would be automatic, absent “special circumstances,” and instead applied the standard four-factor test in determining whether to grant requests for injunctions against infringers. In the view of some (including the plaintiff inventor organizations) the inability of patent-holders to obtain injunctions automatically means that they no longer have “the right to exclude others” from practicing the claimed invention.
The basis for the power to issue patents is in the Constitution; that Congress may grant “for limited Times … Inventors the exclusive Right to their … Discoveries.” Art. 1, Sec. 8, Cl. 8. But that language doesn’t require injunctive relief, as the history of remedies for patent infringement demonstrates. The Patent Act of 1790 provided for no equitable remedies for infringement, and in the decades thereafter Congress rejected proposed bills to provide injunctive relief to patentees. Injunctions were finally approved by Congress in the Patent Act of 1819, but the authority to grant injunctions was there explicitly limited as only “according to the course and principles of equity.” Such a limitation carries over to the present day, as the current statute provides that courts may grant injunctions “in accordance with the principles of equity,” 35 USC 283. (For a thorough discussion of the relevant history, readers are directed to Christopher S. Storm’s excellent article on the topic, “The Patent Industry Versus eBay,” 130 Penn State Law Review 73 (2025).)
It was the language of 35 USC 283 that the Supreme Court seized upon in eBay. Justice Thomas’s short opinion for the Court rejected the Federal Circuit’s approach, characterized as “unique to patent disputes,” that as a general rule, “a permanent injunction will issue once infringement and validity have been adjudged.” Though conceding that “patents shall have the attributes of personal property” (quoting 35 USC 261), the Court stated that “the creation of a right is distinct from the provision of remedies for violations of that right.”
In view of all this the language on the cover of issued patents appears correct. That a right is subject to conditions does not make it something other than a right. And the conditioning of an injunction on principles of equity is expressly in the statute, backed by a unanimous Supreme Court opinion.
Of course, the real goal of those who oppose eBay extends beyond tinkering with the language on the cover of issued patents. They seek to change the law, as with a bill currently pending in Congress, The RESTORE Patent Rights Act, which would create a rebuttable presumption of injunctive relief following a final judgment of infringement. As Dennis Crouch recently stated, this “bill remains pending but is highly unlikely to become law.”