USPTO, DOJ file 3rd joint pro-injunction brief since June in standards-RELATED but NOT undisputedly standard-ESSENTIAL patent case: next stop Wilus v. Askey?

Context:

• During the first Trump Administration (2017-2021), the Antitrust Division of the United States Department of Justice (DOJ-ATR) and the United States Patent & Trademark Office (USPTO) opposed the notion that injunctive relief over standard-essential patents (SEPs) should be practically unavailable.
• In President Trump’s second term, the DOJ-ATR has seamlessly picked up where its first-term predecessors left off in 2021. The clearest message was the Statement of Interest in a Disney v. InterDigital case in Delaware (October 6, 2025 ip fray article), rejecting antitrust claims over SEP enforcement.
• U.S. depty antitrust chief Dina Kallay has also voiced concerns over certain SEP-related developments in Europe: Licensing Negotiation Groups (LNGs) and court-imposed global license agreements, warning against serious trade law issues that could draw pushback from the U.S. (October, 10, 2025 ip fray article).
• There have been joint pro-injunction filings by the DOJ with the USPTO in the second Trump term, but without explicitly (though arguably implicitly) touching on access to SEP injunctions due to the specific fact patterns in those cases:
  • In Radian Memory Systems v. Samsung Electronics (United States District Court for the Eastern District of Texas, case no. 2:24-cv-1073; meanwhile settled), a Statement of Interest (governmental amicus curiae brief) by the two agencies (a) supported (PDF) the availability of preliminary injunctions over patents and (b) discussed competition concerns posed by standards-development organizations (SDOs) forcing others to make their intellectual property available for free while acknowledging that it was a patent infringement case in which Radian had not raised an antitrust claim. Radian was “iced out” from the development of the relevant standard due to its refusal to commit to royalty-free licensing, yet identified patents in its portfolio that were allegedly infringed. As for the potential abuse of market power by an SDO to force patent holders to waive their right to be fairly compensated (an allegation that has also been brought against Google-led codec consortium Alliance for Open Media (AOM)), Deputy Assistant Attorney General Kallay’s speech at a Concurrences dinner last fall referenced the submission in Radian and is instructive (September 19, 2025 DOJ press release).
  • In the pre-institution phase following Netlist’s Section 337 (unfair imports) complaint against Samsung, Google and Super Micro Computer, the agencies submitted comments on the public interest (PDF) arguing that limited exclusion orders (LEOs; i.e., U.S. import bans) by the United States International Trade Commission (USITC or ITC) should be available to stop patent infringement. The investigation was subsequently instituted. This is part of the wider dispute between Netlist and Samsung (see, e.g., a May 24, 2024 ip fray article on post-verdict patent validity issues and a July 30, 2025 ip fray article on a new complaint). Samsung has tried to raise SEP-related defenses, but Netlist has insisted that its technology is proprietary. The USPTO-DOJ filing does not address that part, not even oblioquely: it generally advocates access to LEOs.
• Last fall, non-practicing entity (NPE) Collision Communications won a $445M jury verdict against Samsung in the Eastern District of Texas (October 14, 2025 ip fray article). Here, again, the patents are not undisputedly standard-essential: Collision stated that they were non-SEPs, but when Collision sought leave to amend an expert report, Samsung opposed partly on the grounds that the infringement allegations were now going to be based on a standard, allegedly turning the case into a SEP case though Samsung had not raised any SEP-specirfic defenses. The court was not persuaded.

What’s new: Yesterday (February 27, 2026), the DOJ and the USPTO filed a Statement of Interest (PDF) in support of Collision’s motion for a permanent injunction against Samsung and issued a press release. This is a reinforcement of the Statement of Interest in Radian, arguing that patent valuation is difficult and the fair value of patents should be determined by the market against the backdrop of the exclusionary nature of patent rights.

Direct impact: Collision will welcome this case-specific support. But this question will ultimately have to be decided by the United States Court of Appeals for the Federal Circuit, which is aware of governmental submissions changing virtually every time a new party is in the White House.

Wider ramifications: While there are still no SEP-specific arguments to be found, the filing is still significant for various reasons:

• The plaintiff’s NPE status sets it apart from Radian and Netlist. The brief is largely about NPEs’ access to U.S. patent injunctions and argues that even under eBay v. MercExchange, such companies must also be able to obtain injunctive relief in the interest of promoting innovation.
• While there was never any concrete basis to assume that U.S. patent policy would change after Assistant Attorney General Gail Slater’s resignation (“fired” according to sources cited by CNN), this is the first such filing by the DOJ since and it shows no discontinuity.
• Of the four patents underlying the Collision jury verdict (six were originally aserted), only one still has a remaining term making it eligible for injunctive relief. U.S. Patent No. 7, 593,492 (“Combinational hybrid turbo-MUD”) has an adjusted expiration term until May 30, 2028. Some U.S. judges have held a short remaining lifespan against patentees seeking injunctions while German judges typically take the opposite view.
• The USPTO and DOJ are also taking a rather German and Unified Patent Court (UPC) stance on emphasizing market dynamics that result from licensing negotiations in an environment where injunctions are widely available, as opposed to the English courts’ rate-setting-centric philosophy. That divide between continental Europe and the UK was also mentioned by the UPC Mannheim Local Division’s (LD) Presiding Judge Prof. Peter Tochtermann at yesterday’s InterDigital v. Amazon contempt hearing. ip fray attended it (there was no other member of the general public in the courtroom) and reported on Amazon’s commitment to waive certain remedies in the UK in order to avoid UPC sanctions as well as a warning that those seeking expedited royalty determinations in the UK may be penalized by the UPC.
• All three cases in which the USPTO and DOJ made joint filings on patent injunctions, and the DOJ’s separate statement on SEP-related antitrust claims, involved U.S. companies as the holders of the relevant patents. All three joint filings were in cases to which Korean electronics giant Samsung is a defendant, but in the Netlist ITC case it is joined by Google. And the DOJ’s separate SEP antitrust-related filing went against U.S. company Disney.
• The question is now whether the next step will be for the USPTO and DOJ to support Wilus against ASUS subsidiary Askey. Wilus is seeking what would be the first U.S. SEP injunction in almost 20 years (February 19, 2026 ip fray article). In economic terms it’s an Asian-Asian dispute on U.S. soil. Like InterDigital and arguably also Collision, Wilus conducts research but doesn’t make products. It can be safely inferred from the current U.S. government’s filings and statements, also in connection with a SEP Working Group (December 30, 2025 ip fray article), that the current USPTO and DOJ-ATR would like to see SEP injunctions and SEP-based import bans.