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In 2022, during the last crypto bear market, the crypto industry was already rocked by the closure of FTX, which was the third largest cryptocurrency exchange at the time. Now with Bitcoin down 60% off of its high, the crypto market is being rocked again. 

In 2022, during the last crypto bear market, the crypto industry was already rocked by the closure of FTX, which was the third largest cryptocurrency exchange at the time. Now with Bitcoin down 60% off of its high, the crypto market is being rocked again. 

According to Weex.com Crypto News, four crypto platforms have scheduled their closures within 30 days. These platforms include: BitMart, BitMEX, AscendEX, EXMO.com. While these examples specifically involve cryptocurrencies and cryptocurrency exchanges, as discussed in this article, the scope of dispute resolution has a broader breadth and involves the comprehensive analysis of the Web3 economy.

The new digital economy built on Web3 

Web3 is already powering a rapidly expanding digital economy that extends far beyond cryptocurrencies. Blockchain technology underpins digital currencies, decentralized finance (DeFi) platforms that facilitate lending and borrowing without traditional financial institutions, non-fungible tokens (NFTs) that represent ownership of digital and physical assets, decentralized autonomous organizations (DAOs) that enable community governance, tokenized real-world assets, decentralized marketplaces, blockchain gaming ecosystems, and increasingly sophisticated smart contracts capable of executing agreements automatically once predefined conditions are satisfied.

Major financial institutions, such as JPMorgan, BlackRock and Goldman are exploring tokenized securities. Fortune 50 Companies including Walmart and Coca-Cola are utilizing blockchain for transparency and traceability in their global supply chains. 

Governments are evaluating digital identity initiatives and businesses across industries are experimenting with tokenization as a means of representing ownership interests in everything from real estate to fine art. Collectively, these innovations represent more than technological advancement—they signal the emergence of an entirely new commercial ecosystem. However, every mature marketplace requires more than an efficient transaction layer. It also requires a trusted mechanism for resolving disagreements when transactions do not unfold as expected.

Every new economy creates new disputes

The evolution of commerce has always been accompanied by the evolution of conflict. International trade gave rise to commercial arbitration. Electronic commerce required new approaches to cybersecurity and digital contracting. Web3 is no different. 

Although blockchain introduces novel technologies, the underlying disputes remain remarkably familiar: parties disagree about ownership, performance, governance, fraud, interpretation, and responsibility.

The difference is that these disagreements now arise within decentralized ecosystems that frequently transcend national borders. As experienced attorneys in this area, we have found the most common categories of Web3 disputes include:

• Familiar disputes in a new digital setting

Web3 disputes may sound highly technical, but many resemble problems people already understand. A smart contract dispute is much like an automatic payment going through even though the underlying deal has changed. 

A digital asset dispute may be as simple as asking who owns money taken from a wallet without permission. 

A DeFi dispute can resemble a disagreement with a bank over a loan, investment loss, or improper liquidation—except there may be no traditional bank involved. 

A DAO governance dispute is similar to a shareholder fight over voting, control, or use of company funds. 

An NFT dispute may arise when someone buys a digital image but later discovers that the purchase did not include the copyright. And in cross-border transactions, the first question may be the most basic one: Which country’s law applies, and where should the dispute be heard? 
In other words, Web3 does not create entirely new human conflicts. It places familiar disputes—over contracts, money, ownership, governance, and fairness—into a faster, borderless, and more technologically complex environment.

• Cross-border jurisdictional challenges 

A single blockchain transaction may involve parties located across multiple continents, utilizing decentralized infrastructure distributed globally. 

Questions concerning governing law, jurisdiction, applicable regulations, and enforcement frequently become as significant as the substantive dispute itself. 

These examples demonstrate an important reality: Web3 disputes are rarely confined to technology alone. They involve traditional legal principles applied within entirely new technological environments.

Why traditional litigation is inadequate

Traditional litigation was designed for disputes involving identifiable parties, defined jurisdictions, and tangible assets. Web3 challenges each of these assumptions. Transactions occur across decentralized networks, parties may remain pseudonymous, digital assets move across borders in seconds, and the applicable law is often uncertain. As a result, conventional court proceedings can be slow, costly, and ill-suited to the pace and global nature of decentralized commerce. Jurisdictional disputes, public proceedings, and the need for specialized technical expertise further complicate litigation. As Web3 continues to evolve beyond national boundaries, so too must the mechanisms for resolving its disputes.

ADR: The often-overlooked solution

ADR works best in Web3 when it is designed into the transaction from the outset. The goal is simple: do not wait until assets are frozen, code has failed, or participants are scattered across several countries to decide how a dispute will be resolved. Web3 businesses should adopt a clear, layered process—begin with direct negotiation, move to mediation for commercial resolution, use expert determination for narrow technical questions, and reserve arbitration for disputes requiring a binding and internationally enforceable outcome.

The dispute resolution clause should identify the governing law, seat of arbitration, administering institution, language, number of arbitrators, and method for selecting neutrals with relevant digital asset expertise. It should also address emergency relief, preservation of wallet records and blockchain evidence, confidentiality, notice through verified digital channels, and the treatment of pseudonymous parties. DAO rules and platform terms should explain who may bring a claim, who represents the community or protocol, and how any settlement or award will be implemented.

A practical Web3 dispute-resolution model may therefore look like this: rapid notice and negotiation; expedited mediation; technical issues referred to an independent expert; and, if necessary, streamlined arbitration with emergency procedures and enforceable relief. For lower-value disputes, an online, documents-only process can reduce cost and delay. For high-value or cross-border disputes, institutional arbitration can provide procedural structure, specialist decision-makers, and enforceability. The key is to treat dispute resolution as part of the product, not as legal language added at the end. A Web3 project that plans for conflict is not expecting failure—it is demonstrating sound governance. Build the transaction, build the technology, and build the path to resolution at the same time.

Looking beyond smart contracts

Web3 has fundamentally changed how we transact, with smart contracts, tokenization, and decentralized platforms transforming commerce at an unprecedented pace. 

Yet technology alone cannot resolve the human realities of business trust, fairness, judgment, and disagreement. Every successful marketplace requires not only an efficient way to transact, but also a trusted way to resolve disputes when transactions fail. The next evolution of Web3, therefore, is not simply about building smarter contracts; it is about embedding smarter dispute resolution into its very foundation. 

Projects that integrate negotiation, mediation, arbitration, and sound governance from the outset will inspire greater confidence, attract investment, and stand the test of time. 

Blockchain may power the transaction, but ADR powers the trust. And in the digital economy, trust will always be the most valuable asset. 

While deportation headlines continue to dominate U.S. news, U.S. Citizenship and Immigration Services (USCIS) has quietly been examining approved naturalization applications filed by U.S. legal permanent residents (LPR) who have already obtained U.S. citizenship. 

The process whereby individuals’ previously granted naturalization status is revoked is called “denaturalization.” In June 2025, U.S. Assistant Attorney General Brett A. Shumate issued a memo requesting the DOJ’s Civil Division to “prioritize and maximally pursue denaturalization proceedings in all cases permitted by law and supported by the evidence.” One year later, this memo has led to many LPRs fearfully asking, “Is it safe to become a naturalized U.S. citizen?” 

To answer this question, it is important that one understands that U.S. naturalization process. 

Generally, to be eligible for U.S. naturalization, one must be at least 18 years old, an LPR (green card holder) for 5 years, maintain continuous and physical presence in the U.S., demonstrate good moral character, pass exams in English and U.S. history and civics, and swear allegiance to the U.S. 

The 5-year period can be shortened to 3 years if the person obtained their LPR status through marriage to a U.S. spouse and they are still legitimately married to that spouse.

Any LPR who wants to become a naturalized U.S. citizen must file an application for naturalization with USCIS, submit their biometrics (which consists of fingerprints, digital photographs, and signatures), have a background check performed, pass the exams, and be interviewed by USCIS before the final step occurs: their Oath Ceremony. During the Oath Ceremony, LPRs take the Oath of Allegiance to the United States before a designated USCIS official or federal judge. This beautiful patriotic service is the final step, after which the person is issued a Certificate of Naturalization. 

The naturalization process allows our nation to continue weaving new immigrants into the rich and diverse fabric that makes up the U.S. 

However, the Department of Justice can initiate either civil or criminal denaturalization proceedings against a naturalized U.S. citizen under certain scenarios outlined in 8 USC section 1451(a). If the individual is accused of “illegally procured” naturalization, it means the DOJ suspects the person was not eligible for naturalization because not all of the statutory requirements were met. Additionally, a person may face denaturalization if naturalization was obtained by concealment of a material fact or willful misrepresentation; however, whether the concealment was “material” or “willful” are often at the heart of the debate. 

The DOJ can also seek to denaturalize a person who becomes a member or affiliated with the Communist Party, another totalitarian party, or a terrorist organization within the 10 years following the filing date for naturalization, on the basis that it shows the individual is not committed to the principles of the U.S. Constitution.

In any of the above scenarios, the federal government bears the burden of proof in civil denaturalization cases to show by “clear, convincing, and unequivocal evidence which does not leave the issue in doubt.”  

Whereas, if a criminal conviction is pursued, it must show “proof beyond a reasonable doubt” that the person violated 18 USC 1425, and the U.S. Supreme Court has unanimously held that only an illegal act that played a role in the person’s acquisition of U.S. citizenship can lead to criminal denaturalization. Maslenjak v. United States, 582 U.S. 335 (2017). Given the above, denaturalization is a complex trial process that results in lengthy litigation.   

From 2000 to 2017, denaturalization proceeding was exceedingly rare, with approximately 10 cases per year filed in this 18-year window, out of the 11.8 million individuals who successfully naturalized. 

In the past 9 years, over 300 denaturalization cases are estimated to have been filed, resulting in an average of 34 cases filed each year; however, the annual amount of naturalization approvals has also increased, with the U.S. welcoming 7.15 million naturalized citizens over the past 9 years. 

Rough estimates indicate that over 70 denaturalization cases have been filed by the DOJ since January 20, 2025, with more to come; however, this is still an extremely small percentage of people who are being charged with denaturalization statistically. 
Therefore, LPRs who have met their eligibility requirements for naturalization should feel encouraged to file, despite the recent “prioritizing” of denaturalization.

As U.S. citizenship confers many benefits, including the ability to vote, travel outside of the U.S. freely, and file immigration petitions for a broader range of family members, LPRs have considerable incentives to apply for naturalization. 

However, they should also scour their applications to ensure that all the information contained in it is correct and that any documentary evidence provided is accurate. 

I have seen official government documents issued with incorrect names, spellings, and dates. Could USCIS or the DOJ argue that such incorrect information or documentation is a “willful misrepresentation” or that the conflicting document helped conceal a “material fact” that lead to the naturalization? Perhaps. 

Thus, best practice dictates upholding the old adage of “trust but verify” before submitting any documentation along with an application for naturalization.

Nicole Mackmiller is an immigration law attorney with Pear Sperling Eggan & Daniels PC (PSED Law) in Ann Arbor.

Reprinted with permission from the WCBA periodical Res Ipsa Loquitur.

As August was Child Support Month in Michigan and child support touches a large segment of the Detroit legal community, I held a conversation with G. Bomani Gray for Coffee and Conversation.

By Zenell Brown

As August was Child Support Month in Michigan and child support touches a large segment of the Detroit legal community, I held a conversation with G. Bomani Gray for Coffee and Conversation.

Bomani Gray is the University of Michigan’s Project Director of the Coalition of Practitioners for Father Support. With the support of the University of Michigan School of Social Work, Bomani serves as the project director for the Michigan Action Plan for Father Involvement (MAP-FI), helping to create “Michigan’s Children with a Father-Fueled Future.”  

Bomani and I have known each other over a decade as our respective work paths families and child support crossed. While enjoying our morning beverages, Bomani shares his reflections on changing court practices, the value of Dad Cafes, and a vision for justice systems that recognize fathers as whole people and meaningful participants in their children’s lives.

Zenell: When we talk about fathers and the justice system, what do you most want court and legal professionals to understand?

Bomani: I would like to see greater understanding — and perhaps greater compassion — for fathers who interact with the justice system. That requires court and legal professionals to look beyond their personal experiences and the stereotypes they may commonly encounter.

Some fathers are doing the very best they can under difficult circumstances. We need to recognize that traditional views of fathers were often shaped by earlier expectations about gender and family roles. Those expectations do not always reflect the realities of today’s families or the complexities of an individual father’s life.

Zenell: Are you seeing changes in how courts engage with fathers?

Bomani: Yes. Courts are doing better, particularly in the language they use when speaking to and about fathers. We are also seeing courts consider responses other than incarceration when fathers are unable to meet their child-support obligations.

It is encouraging that the old “lock them up” approach and the broad labeling of fathers as “deadbeat dads” are no longer as accepted as they once were. There is also greater support for fathers who genuinely want to be engaged and involved in their children’s lives.

Zenell: Tell me about the network supporting this work.

Bomani: Our organization has approximately 300 representatives. The network includes fatherhood organizations, courts, governmental agencies, and other community partners. Bringing these groups together creates opportunities to improve systems, strengthen relationships, and better support fathers and families.

Zenell: One of the initiatives you mentioned was the Dad Cafes. What are they?

Bomani: For the past three years, we have held Dad Cafes to provide fathers with a welcoming, non-adversarial introduction to the court system. The cafes allow fathers to engage with court and child-support professionals in a setting that is very different from a courtroom.

The sessions help dispel common myths about the courts — including beliefs that the system is inherently biased against fathers or primarily interested in locking people up.

Zenell: Where have the Dad Cafes been held?

Bomani: Sessions have been held in Calhoun County, Grand Rapids, and Wayne County. Approximately four to six sessions are offered each year, with the involvement of the Office of Child Support.

Zenell: What difference have these conversations made?

Bomani: They have helped build better relationships between fathers and court systems. When fathers meet court professionals in a less formal environment, they can ask questions, better understand court processes, and begin to see the people within the system differently. Court professionals also gain an opportunity to listen directly to fathers and better understand their experiences.

Zenell: What is your broader vision for this work?

Bomani: The vision is to reimagine court systems in which families are at the center and fathers are supported in playing meaningful roles in their children’s lives.

To achieve that vision, we must move beyond traditional assumptions and negative stereotypes about fathers. We must be willing to see the whole person and recognize the complexities of fatherhood including how race, socioeconomic circumstances, family history, access to resources, and other human dimensions may shape a father’s experiences.

Ultimately, this is about building court systems that see fathers not simply through the problems that brought them to court, but as parents who may need information, support, accountability, and a meaningful opportunity to remain involved in their children’s lives.

Zenell: Bomani, it’s always a pleasure talking with you. Where can lawyers and court professionals who work with dads find more info on MAP-FI?

Bomani: www.Map-fi.org 

Joining a health system through acquisition can offer meaningful benefits to a physician practice, including enhanced operational support, access to capital, improved payer contracting leverage, and long-term sustainability. 

Joining a health system through acquisition can offer meaningful benefits to a physician practice, including enhanced operational support, access to capital, improved payer contracting leverage, and long-term sustainability. 

At the same time, these transactions involve a complex and highly regulated legal landscape. Physician owners who understand the key legal and operational issues early in the process are better positioned to manage risk, preserve value, and avoid post-closing surprises.

Outlined below are several primary legal considerations physician practices should be aware of when evaluating a potential acquisition by a health system.

Transaction Structure and Its Implications

One of the earliest and most important issues in any acquisition is how the transaction is structured. Health system acquisitions of physician practices are most commonly structured as either an equity purchase or an asset purchase.

In an equity transaction, the health system acquires the practice entity itself, including its assets and liabilities. In an asset purchase, the health system acquires only designated assets, such as select equipment, real estate, and contracts, while the practice generally retains responsibility for historical liabilities unless expressly transferred.

From the physician’s perspective, an equity transaction may offer operational continuity and administrative simplicity. However, equity deals also expose the health system to potential compliance and billing risks, which often leads to heightened scrutiny. As a result, health systems frequently prefer asset purchases. Physicians should be prepared for this and understand that, in asset transactions, certain legacy obligations, such as contracts, accounts receivable, equipment, real estate, or medical record retention duties, may remain with the practice post-closing.

Transaction structure also affects taxes, deal timing, and how liabilities are allocated. Early coordination with legal and tax advisors is critical to ensure the structure aligns with the physicians’ financial and risk-management objectives.

Stark Law and Anti-Kickback Compliance

Physician practice acquisitions are heavily influenced by federal fraud and abuse laws, most notably the Physician Self-Referral Law (“Stark Law”) and the Anti-Kickback Statute. These laws directly affect both the purchase price paid for the practice assets and the compensation physicians will receive following closing.

At a core level, these laws require that compensation and other remuneration be consistent with fair market value, commercially reasonable, and not determined in a manner that takes into account the volume or value of referrals. Fair market value generally reflects the price that would be paid in an arm’s-length transaction between unrelated parties, while commercial reasonableness focuses on whether an arrangement serves a legitimate business purpose even absent referrals.

From the physician’s standpoint, it is important to understand that a strong referral base or anticipated downstream health system revenue cannot be used to justify higher purchase prices or compensation. Health systems are understandably cautious in this area, and regulators regularly scrutinize practice acquisitions to ensure they are not, in substance, payments for referrals.

Physician Employment and Compensation Expectations

Employment arrangements are a central component of most physician practice acquisitions. Following closing, physician owners typically transition from practice owners to employed physicians of the health system. These agreements must comply with Stark and related regulatory requirements, which may impose constraints on compensation models.

Physicians should be mindful that informal or early compensation discussions may later need to be recalibrated to ensure compliance. For practices where physician owners are critical to long-term success, health systems may offer retention-focused incentives, such as sign-on bonuses tied to service commitments.

Physicians should also be prepared to evaluate compensation models used by the health system, such as base salary plus productivity or quality-based incentives and consider how those models compare to prior practice economics. For example, in an independent group practice, physicians often have more flexibility in how they’re paid, including sharing in the practice’s overall financial success. That flexibility exists under special federal rules for independent practices and are often not available after a health system acquisition. 
Once physicians become system-employed, compensation is typically tied to the physician’s personal productivity. Understanding these structures early can help manage expectations and support a smoother transition.

Licensure, Enrollment, and Change-of-Ownership Issues

Practice acquisitions frequently trigger licensure, credentialing, and payer enrollment consequences. These may include change-of-ownership filings, commercial payer notices, reassignment of billing privileges, credentialing updates, accreditation changes, and, in certain circumstances, certificate of need approval.

Physicians should be aware that failure to address these requirements well in advance of closing can lead to reimbursement delays or interruptions after the transaction closes. Early coordination between the practice, the health system, and legal counsel is essential to maintaining continuity of patient care and cash flow.

Due Diligence and Compliance Considerations

Health systems will typically conduct extensive due diligence before acquiring a physician practice. This process often includes reviews of billing and coding practices, compliance programs, documentation standards, litigation/claims history, and exclusion screenings.

From the physician’s perspective, preparation is key. Organizing records, understanding historical compliance practices, and anticipating areas of scrutiny can help the process move more efficiently. Health systems frequently engage independent third-party valuation firms to support fair market value determinations, and physicians should expect detailed operational inquiries as part of that process.

Physicians should also understand how medical records and accounts receivable will be handled post-closing. In asset transactions, responsibility for pre-closing accounts receivable and record retention may remain with the selling practice unless expressly transferred, which can affect post-closing administrative obligations.

Real Estate, Equipment, and Ancillary Arrangements

Most physician practices maintain office leases, own or lease equipment, and participate in ancillary service arrangements. Physicians should expect the health system to carefully evaluate which leases, equipment, and contracts it intends to assume.

In some cases, the health system may not assume all existing arrangements, particularly if they do not align with system standards or strategic objectives. These obligations may remain with the practice or require renegotiation. Early and candid discussions regarding real estate, equipment, and ancillary services can help avoid misunderstandings and last-minute complications.

Employment and Staff Transition Issues

The treatment of non-physician staff depends heavily on transaction structure. In an equity transaction, existing employment relationships generally continue, though the health system may assume historical employment-related liabilities. In an asset purchase, staff do not automatically transfer, and new employment offers may be required.

Physicians should understand how staff benefits, compensation, accrued leave, and seniority will be addressed and communicate clearly with employees to maintain morale and continuity of care.

Conclusion

Acquisition by a health system can be a transformative opportunity for a physician practice, but it is not merely a financial transaction. Many of these issues reflect system-level compliance and operational realities rather than negotiating positions, and early transparency benefits both physician practices and health systems alike.

Legal, regulatory, and operational considerations play a central role in shaping deal structure, compensation, and post-closing success. Physicians who engage experienced legal and financial advisors early, understand the health system’s compliance constraints, and approach the process strategically are best positioned to achieve a favorable outcome.

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Thomas W. Huyck is a senior attorney with Foster, Swift, Collins, & Smith PC. He has 25 years of experience advising health systems, physician groups and businesses.  Drawing on experience as both outside and in-house counsel, Huyck guides clients through the intricacies of complex federal and state regulatory frameworks as well as handling merger and acquisition (M & A) transactions.

 Injunctions, Innovation, and the Problem We Can’t Price
There is a shift happening in patent law, but its real impact will not be felt in policy statements ... it will be felt in federal courtrooms.

 Injunctions, Innovation, and the Problem We Can’t Price

There is a shift happening in patent law, but its real impact will not be felt in policy statements ... it will be felt in federal courtrooms.

Recently, the United States Patent and Trademark Office (USPTO) and the Department of Justice (DOJ) filed a Statement of Interest in Collision Communications, Inc. v. Samsung Electronics Co., reinforcing a principle that has quietly eroded over time: a patent is a right to exclude, and injunctions are central to that right.

At first glance, that sounds obvious, patents have always been framed this way. But in practice, particularly over the last fifteen years, that right has softened. For many patent owners, the realistic outcome of enforcement has not been exclusion, it has been compensation.

This latest filing suggests a course correction and with that correction comes a harder question: who should actually have the power to shut down a competing product?

The Legal Foundation: The Right to Exclude

The statutory framework is clear. Under 35 U.S.C. § 283, courts “may grant injunctions in accordance with the principles of equity to prevent the violation of any right secured by patent.” That right, traces directly to the Constitution, which empowers Congress to grant inventors exclusive rights to promote the progress of science and useful arts. U.S. Const. art. I, § 8, cl. 8.

“[The Congress shall have Power ... ] To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

The government’s recent filing reinforces that patents are not merely economic instruments. They are property rights with exclusionary force. That framing matters because in litigation, how a right is characterized often dictates the remedy that follows.

The eBay Framework and the Shift That Followed

Modern injunction analysis is governed by eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006). In eBay, the Supreme Court rejected both automatic injunctions and categorical denials. Instead, it imposed a four-factor equitable test:

• Irreparable harm

• Inadequacy of monetary damages

• Balance of hardships

• Public interest

That decision reshaped patent litigation. In theory, it restored balance and in practice, it often shifted outcomes toward damages. 

Over time, courts became more hesitant to grant injunctions, and operating companies became more comfortable treating infringement as a manageable risk.

The result is what many now describe as efficient infringement where the question is not “Can we do this?” but “What will it cost if we do?” The DOJ and USPTO appear to be pushing back on that dynamic.

Not All Patent Owners Are the Same

Any discussion of injunctive relief inevitably runs into the issue of non-practicing entities (NPEs). But that label hides important distinctions.

Universities, for example, are non-practicing entities. They conduct foundational research, often with federal funding and rely on licensing to bring that research to market. 

Without meaningful enforcement rights, including the possibility of injunctions, their model weakens. Why take a license early if competitors can simply use the technology and deal with damages later?

Licensing companies occupy a more nuanced middle ground. Some aggregate fragmented rights and facilitate access to innovation. Others rely more heavily on enforcement as a business model.

Then, there are patent assertion entities often labeled “trolls” that raise legitimate concerns. These entities may assert patents late in a product lifecycle, targeting companies after products are already deployed and redesign is costly.

Treating all of these actors the same under an injunction framework is both impractical and inconsistent with how the innovation ecosystem actually works.

The “Gotcha” Problem and Enforcement Timing

For many operating companies, patent enforcement does not feel like a predictable risk, it feels like an ambush.

A patent surfaces after a product is launched. Claim scope becomes clear only through litigation. The accused feature cannot easily be redesigned. And the assertion arrives at the moment of maximum leverage.

This creates what can fairly be described as a “gotcha” dynamic where timing, not just merit, drives outcomes. That reality complicates the equitable analysis because while the legal right may be valid, the manner in which it is asserted raises legitimate questions about fairness and market impact.

A Useful Contrast: Standard Essential Patents (SEPs)

Standard Essential Patents (SEPs) provide a helpful comparison. SEPs cover technologies necessary to comply with industry standards: Wi-Fi, 5G, USB and are typically disclosed through standard-setting organizations. Their owners generally commit to licensing on fair, reasonable, and non-discriminatory (FRAND) terms.

This creates predictability. Companies know the landscape; they can anticipate licensing obligations. And disputes are more likely to center on pricing than exclusion.

In that environment, courts are often less inclined to grant injunctions because monetary compensation is expected to be adequate. The contrast is telling: where predictability increases, the need for injunctive relief often decreases.

The Ongoing Debate: Is This About NPEs?

Some commentators have suggested that the DOJ/USPTO filing places a “thumb on the scale” in favor of non-practicing patentees—particularly those who rely on enforcement rather than commercialization. (See e.g., USPTO and DOJ Statement of Interest in Collision Communications: Another Thumb on the Scale in Favor of NPE Patent Plaintiffs; Rich, Joshua, March 5, 2026, PatentDocs.org).

That concern is not without merit. Strengthening the availability of injunctive relief increases leverage. And leverage can be used in ways that feel disconnected from innovation in the traditional sense.

But focusing solely on NPEs risks missing the deeper issue. The concern about NPE leverage is real but it may be a symptom, not the cause.

The Valuation Problem That Nobody Wants to Solve

At the center of this debate is a more fundamental problem: we do not have a reliable way to value patents. Patent damages are built on hypothetical negotiations, what willing parties would have agreed to in a world that never actually existed.

Courts and experts construct models. Assumptions are layered on assumptions. Outcomes vary widely. And everyone involved, patentee, defendant, expert, and judge, knows that the number, at best, is an approximation.

That creates a structural tension within the eBay framework. If monetary damages cannot be calculated with confidence, how can courts conclude they are “adequate”? And if they are not adequate, the logic begins to tilt toward injunction.

Which raises an uncomfortable question: are we relying more heavily on injunctive relief not because harm is truly irreparable but because valuation is inherently uncertain?

Irreparable Harm and Doctrinal Drift

Under eBay, irreparable harm is supposed to be specific and demonstrable. But in practice, arguments have expanded to include:

• Loss of market position

• Competitive disadvantage

• Uncertainty in future licensing

• Difficulty in quantifying harm

At some point, the line begins to blur. Irreparable harm risks becoming less about the nature of the injury and more about the limits of economic modeling. If that happens, the system begins to drift toward something eBay rejected: a soft presumption of injunction.

Litigation Implications Going Forward

If courts take the DOJ/USPTO signal seriously, we are likely to see changes in how cases are litigated. Plaintiffs will focus more heavily on:

• Non-quantifiable harm

• Market dynamics

• Loss of control over technology

Defendants will emphasize:

• Lack of notice

• Predictability

• Timing of enforcement

And courts will likely respond by crafting more nuanced remedies, tailored injunctions, delayed enforcement, or structured licensing opportunities.

Let’s call it what it is: we built a system that demands precision in valuing innovation—while dealing with assets that resist precision. Now courts are being asked to choose between two imperfect tools:

• Monetary damages that are inherently uncertain

• Injunctive relief that can reshape markets

The DOJ and USPTO are not trying to empower any particular class of patent holder. They are trying to restore credibility to the right to exclude. But once that right is strengthened, it applies across the board.

Closing Thoughts

The Constitution did not promise inventors a royalty, it promised them: an exclusive right. The challenge now is ensuring that right:

• Rewards innovation,

• Supports competition,

• And does not become a tool for strategic surprise

Maybe the real issue isn’t injunctions at all. Maybe it’s that we never solved the problem of valuing innovation with the level of certainty the law demands.

And now, faced with that uncertainty, courts are being asked to choose between imperfect math, and market exclusion. As courts grapple with uncertain patent valuation, injunctions are regaining relevance. 

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Mikhail “Mike” Murshak is a licensed patent attorney and experienced Intellectual Property (IP) attorney at Foster, Swift, Collins, & Smith PC.  He specializes in patent, trademark strategy and acquisition, and general IP and business counseling including preparation, prosecution, and licensing.