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The use of facilitative mediation in Probate disputes is now widespread throughout the State of Michigan. Probate cases have many special characteristics and intricacies that set them apart from typical disputes. 

The use of facilitative mediation in Probate disputes is now widespread throughout the State of Michigan. Probate cases have many special characteristics and intricacies that set them apart from typical disputes.  This article identifies those special characteristics and provides advice on how to address them in the mediation process.

Family Dynamics:  

Most probate disputes involve members of the same family.  Typically, the participants have known one another for 40-70 years.  They grew up together, shared bathrooms and back seats of the station wagon together. Their resentments toward one another have been percolating for decades. They recently endured the stresses of caring for a dying parent together. They bring jealousy, anger and distrust into the mediation session.  The resentments and distrust impede effective communication and are barriers to open-mindedness.  The attorneys and the mediator should be on the watch for the family dynamics in play, and take measures to negate the negative influences and irrational thoughts that are obstacles to effective discussions.  As an attorney, if you are aware of your client’s acute resentments, you should advise your mediator of that problem in advance of the session.

Guardianships and Conservatorships: 

These are the most difficult cases to mediate, for a number of reasons. The topic is worth its own article. The primary problem is that the person over whom a guardianship or conservatorship is sought may not have the requisite capacity to participate in the mediation process. Often, I have helped to facilitate an agreement between a parent and his/her children, and the parent will renege on the agreement the next day, or when the agreement is presented to the court. It should also be noted that a person cannot be deemed to be in need of a guardian or conservator except through a specific court order.  The court must conduct a hearing and make specific findings of fact, prior to such a determination. While the mediation process can grease the skids for that hearing, it cannot independently create the solution.

Best Day/Worst Day Analysis: 

Quite often, a probate dispute will center around the validity of a testamentary document.  A testamentary document will either be found to be valid or invalid. This determination leaves the parties with an identifiable amount at stake. Assuming that the approximate value of the estate is known, it’s relatively easy to determine the “best day” vs the “worst day” for each participant, should the dispute proceed to court.  In most other types of cases (personal injury, malpractice, divorce, etc.), the potential outcomes are not so clear. The presence of an identifiable range of outcomes in a probate mediation helps the participants to better understand their choices. I had a case a couple of years ago where two brothers in their twenties would recover $200,000 if they won their case, and $0 if they lost.  After a few hours of mediation in a Troy conference room, their step-mother finally offered to pay them $100,000 to settle the case.  The case had a 50-50 probability of success, in my opinion.  The youngsters told me that they wished to reject their step-mother’s proposal.  I reframed the question.  I handed them a 3 x 5 piece of paper and said, “Here is $100,000. Would you take this $100,000 down to the casino in Detroit and place it on a 50-50 bet? You win and you walk away with $200,000. You lose and you walk away with nothing.”  And then I reminded them that their attorney would drive them to the casino, but the cost of the ride would be about $40,000, win or lose. The boys quickly understood the ramifications of their decision and agreed to settle for $100,000.

Disguised Greed and Self-righteousness: 

Greed and self-righteousness are present in all disputes, but it takes a different form in a probate proceeding.  It is easily disguised as the efforts of the “only person here who understood what Dad really wanted.” I often have heard a participant state “I am only trying to honor my father’s wishes” [at least those I was able to unduly influence him into making]. That prompts me to ask if their father’s wish was for his children to wage a three-day battle in a public court room where all of his medical records concerning his dementia would be made public, because that is the outcome if the case does not settle at mediation.

Practical Considerations

Scheduling the Mediation Session: 

Most probate mediations have multiple participants.  It is not uncommon to have four or more participants (with four or more attorneys) involved in a probate proceeding.  This creates scheduling issues. Be considerate of your opposing counsel when scheduling efforts are on-going.  Answer emails promptly, or designate a person in your office to work on scheduling.  It’s frustrating to wait more than a day to get an answer from someone.  It impacts the entire group working on the case. If you reply two or three days after the original scheduling email goes out, it is likely that some of the dates originally proposed will no longer be available.

Payment of the Mediator Fee: 

MCR 2.411(D)(2) states that “The costs of mediation shall be divided between the parties on a pro-rata basis unless otherwise agreed by the parties or ordered by the court.” Attorneys frequently cite this rule in disputes about payment of the mediator fee.  
I do not believe that the rule applies to the typical probate proceeding.  First, a probate proceeding does not have “parties.”  A person participating in a probate proceeding is called an “interested person.” Second, there are typically multiple “interested persons” in a probate proceeding, some of whom have no interest in the mediation. If a charity or heir is not impacted by the court’s determination on the ultimate question, should that charity be required to pay the mediator fee on a “pro-rata basis?” 
Finally, even if the fee is limited to those participating, should it be divided among the number of “sides” or the number of participants? Sometimes one child is challenging a will. That child may be opposed by four siblings.  Should that child pay one fifth or one half of the mediator fee? I strongly encourage attorneys to get the court’s specific decision on payment of the mediator fee when mediation is originally ordered. The court should identify who is participating in the mediation, and what percentage each interested person will be obligated to pay. I also encourage attorneys to consider whether the estate or trust should pay 100% of the mediator fee. This solution removes costly discussion and argument over an issue that is relatively insignificant, dollar-wise, in the ultimate resolution. 

Notice of the Mediation: 

Each interested person whose rights may be affected by the outcome of the mediation should be provided notice of the mediation session, even if they have not appeared in the case. 

Failure to do so may invalidate a hard-earned settlement agreement. 

The Michigan Attorney General must be notified when a charity is involved.

Mediation in probate proceedings saves money, provides certainty sooner, and allows the parties to compromise in a way that cannot be accomplished through a decision of the court. It also allows delicate family problems to be solved in a private, confidential setting, rather than a public court room.  Those who mediate probate proceedings should be aware of the intricacies of that process, and be prepared to address them as they arise.


John Hohman served as a Probate Judge for 17 years. He left the bench in 2013 to become the State Court Administrator.  He has served as a mediator and arbitrator since 2015. He has mediated or arbitrated cases in 45 counties throughout the State of Michigan. His primary focus is probate mediation, but he also serves as a mediator and arbitrator in civil and domestic cases.

Reprinted with permission from the WCBA periodical Res Ipsa Loquitur. 

Data centers are on a lot of people’s minds, with concerns typically involving the amount of water, electricity and land they use. A related concern has to do with concerns about a technology data centers enable, notably, artificial intelligence.

Mackinac Center for Public Policy

Data centers are on a lot of people’s minds, with concerns typically involving the amount of water, electricity and land they use. A related concern has to do with concerns about a technology data centers enable, notably, artificial intelligence.

A recent panel from the Mackinac Center looked at the trade-offs involved in data centers. People often underestimate the positives that data centers contribute to technologies in medicine, manufacturing and other economic sectors. It’s also easy to overlook the economic activity and revenue from the data centers themselves, as well as from the companies they support.

Many concerns are overblown. A typical data center uses less water than a golf course, and new designs allow much of that to be recycled. Michigan has a lot of water, and strong laws ensure its use is sustainable.

Data centers use a lot of energy, but not as much as big companies in Michigan that few people would dream of shutting down.

And electricity is not a zero-sum game, where one business or person using it means less for everyone else. Adding new companies to the electricity grid can be good for everyone when it spreads fixed costs over a wider customer base.

Though all this is true, many voters are skeptical of data centers, and lawmakers respond to their constituents. Some legislative proposals would shut down or severely hinder this new technology and the economic growth, jobs and revenue it could bring. Others would treat data centers differently than businesses that have similar patterns for using water or electricity. And a few bills would regulate data center construction to favor labor unions.

These are bad ideas. Michigan lawmakers should regulate all companies the same when it comes to how they use land, water and energy. The state should not push unionized labor or use the tax code to pick favorites. Citizens and legislators should make Michigan a welcoming state for industry and flatten the playing field as much as possible.

Members of the Michigan Legislature have created various proposals to regulate data centers. Here they are, as summarized by Michigan Votes.

• Senate Bill 1018 imposes a temporary moratorium on the approval and operation of data centers in Michigan until April 1, 2027.

• Senate Bill 1019 amends Michigan’s zoning laws to include the Data Center Regulation Act, reinforces limits on local regulation of resource extraction and energy projects, and protects certain renewable energy projects from retroactive zoning changes.

• Senate Bill 1020 temporarily prohibits the Michigan Public Service Commission from approving any electric utility agreements with data centers until April 1, 2027.

• House Bill 5777 establishes a regulatory framework for large-scale data centers in Michigan, requiring registration, financial security, environmental and operational reporting, prevailing wage for construction, and creating a fund to reimburse local governments for costs related to data center impacts.

• House Bill 5786 sets labor hiring priorities, apprenticeship requirements, and compliance documentation standards for enterprise data center construction contracts in Michigan, with enforcement mechanisms and tax incentive implications.

• House Bill 5787 amends Michigan’s sales tax law to expand and regulate tax exemptions for data center equipment, tying eligibility to job creation, green building, clean energy use, and compliance with labor standards, while establishing new certification, reporting, and accountability requirements for enterprise data centers.

• House Bill 5882 creates a structured process for Michigan local governments to temporarily pause and evaluate large-scale data center and cryptocurrency mining projects, requiring public input, impact studies, and transparency, while preserving existing legal and labor protections.

• House Bill 5881 amends Michigan’s zoning law to require local ordinances to comply with the Data Center Planning and Responsibility Act, and clarifies limits on local regulation of resource extraction and renewable energy projects.

• House Bill 5882 creates a structured process for Michigan local governments to temporarily pause and evaluate large-scale data center and cryptocurrency mining projects, requiring public input, impact studies, and transparency, while preserving existing legal and labor protections.

• House Bill 5982 requires contested case review and final approval by the Michigan Public Service Commission for any utility agreements offering preferential rates to large-load data centers, enhancing procedural oversight without altering substantive ratemaking standards.

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Jarrett Skorup is the vice president for marketing and communications at the Mackinac Center for Public Policy. Michigan legislators consider a variety of proposals, many bad, on data centers

The Trump administration has tried in numerous ways to interfere with the upcoming midterms, often to restrict access to the ballot and suppress votes. As the election nears, speculation has arisen that the administration could next send ICE agents to polling places as an intimidation tactic.

The Trump administration has tried in numerous ways to interfere with the upcoming midterms, often to restrict access to the ballot and suppress votes. As the election nears, speculation has arisen that the administration could next send ICE agents to polling places as an intimidation tactic.

The first thing to say about this prospect is that it would be flatly illegal. As I explain in a new article, federal law has barred armed agents from polling places for well over a century — except in the event of an armed enemy attack on the country — and that prohibition remains in effect to this day. A separate statute prohibits intimidating voters or election workers.

In the event of illegal ICE presence at election sites, local officials are prepared to respond. A few recent incidents are illustrative.

In May, nine ICE agents swarmed a car in the parking lot of the public library in Las Palmas, Texas. The library was a polling site, and it was the early voting period in the primary. When the Bexar County sheriff learned of this situation, he went to the scene and reportedly told the ICE agents to leave, which they did.

A few weeks later, during the California primary, several ICE agents were spotted in the parking lot of a polling place in Simi Valley. After a concerned witness from an immigrant support network reported the sighting, park rangers arrived and persuaded the agents to depart.

Later in June, during New York’s primary, ICE agents entered a library in downtown Syracuse that was being used as a polling site. They were seeking to interview a poll worker as part of an investigation triggered by her social media posts, unrelated to the election. No voters were there at the time, and the county elections commissioner rushed to the site to make sure voting would not be disrupted.

It’s worth noting that there is no indication that the ICE agents were targeting election sites in any of these cases. And in each case, local officials moved swiftly to ensure they left election sites.

Nevertheless, the presence of the federal agents provoked fear and anxiety in these communities for good reason. Tensions around the administration’s mass deportation campaign have never been higher, turbocharged by a $200 billion ICE budget that has empowered armed and often masked agents to use racial profiling to stop and arrest people. Many of the victims have had no criminal background, and many have been lawfully present in the country or even U.S. citizens. Worst of all, we have seen certain ICE agents rely on violent and abusive tactics, including killing individuals who posed no immediate threat with impunity.

All this could make us despair, but it shouldn’t. Not only can we succeed, but we already are succeeding. ICE abuses have sparked outpourings of solidarity and loud demands for accountability across the country. The way that communities have handled the scattered instances of ICE agents at the polls is also reassuring. Local officials and law enforcement are making sure that everyone, including federal agents, follows the law, and that voting proceeds smoothly.

Civil society, including poll watchers and others, will be ready to document any concerning incidents and report them. Litigators, including the Brennan Center, will be standing by to protect voters’ rights in court if any voter is intimidated.

Voters can also do their part. The Brennan Center, alongside Asian Americans Advancing Justice, FIRM, and Unidos, published a Know Your Rights resource for voters detailing what they can do before and during voting if there are federal agents at their polling site.

The administration’s campaign to interfere in our elections is failing — from blatantly illegal executive orders, to vindictive criminal investigations, to a grab-bag of threats to states, localities, election officials, and voter mobilization groups. Court after court has struck down many of these efforts. American voters, too, must stand up to this campaign of intimidation.

Fortunately, voters have seen through the bluster. A recent poll found 67 percent of Americans believe that Trump’s claims about election rigging in California were made to sow doubt over the legitimacy of the election.

During and after the Civil War, federal lawmakers recognized the danger of an executive branch that could try to usurp states’ power over elections. They passed laws preventing election interference that protect us today. As they knew well, our democracy depends on all of us casting our votes and using our voices to hold elected officials accountable at the ballot box. We have the tools we need to protect against abuse.

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Hayne Yoon is senior counsel in the Brennan Center’s Voting Rights and Elections Program.

Usually the state budget has a precise number for how much spending it authorizes from federal funds. The budget for the fiscal year that starts in October does not. And this has raised some controversy about the topline number for how much spending the budget authorizes. But this wouldn’t even be a controversy in most states. That’s because lawmakers and journalists in other states don’t bother to include federal funding when presenting state budgets.

BY CATE WELCH & JAMES M. HOHMAN
MACKINAC CENTER FOR PUBLIC POLICY

Usually the state budget has a precise number for how much spending it authorizes from federal funds. The budget for the fiscal year that starts in October does not. And this has raised some controversy about the topline number for how much spending the budget authorizes. But this wouldn’t even be a controversy in most states. That’s because lawmakers and journalists in other states don’t bother to include federal funding when presenting state budgets.

For instance, a recent report from Senate Republicans in Arizona covers an $18.29 billion budget that does not include federal funds, a figure that is reiterated by reporters.

Pennsylvania lawmakers and journalists pay attention to $50.8 billion in general fund spending, but they ignore the $80 billion in spending from non-general state and federal funds. The state also has separate authorizations for road funding, which are not included in annual budget stories.

North Carolina lawmakers and journalists point to their $34 billion budget, but that is for “net appropriations,” which represents only state funds and does not include federal funds, which they call “receipts.”

Of all the states, it seems 35 exclude federal funding when presenting the total amount of spending their budgets authorize. Only 10 states, Michigan included, include federal funds. Some of those states have unique approaches, such as Alaska, which has four different budget bills, all passed at different times.

Reports from both lawmakers and reporters are often unclear about the state budget and what is included. While we looked further for verification, our classification might be a little off.

Lawmakers get to set the standards for reporting budgets, apparently guided by custom and past practice.

Whether to include federal funds or not is an interesting question because the numbers will mean different things. If someone cares about how much money lawmakers are authorizing, budgetary numbers ought to include federal money. If someone cares about how much money is spent from the state’s taxes and fees, then the budget number shouldn’t include federal funds.

Federal funding is an odd thing. Turning it down doesn’t mean that the state’s taxpayers get a refund. Accepting federal funds is an “accept or pass” proposition. The potential recipients, such as state employees and health care organizations, would like lawmakers to take the money.

The question of whether to accept federal funding is different from state funding, where saying no to spending on a given purpose means the money be used for either other spending priorities or to reduce taxes.

In other words, passing on federal money gets the state nothing. But abstaining from spending all the state money available frees up cash that can be used to reduce state tax burdens.

This is why the Mackinac Center, as well as state reports, focuses on state funding. We exclude federal funding and the small amounts of local and private funding that appear in the state budget.

The new state budget authorizes $50.3 billion in state funds, up from the $48.4 billion authorized by the budget approved last year.

This is different from General Fund revenue. Most of the state’s taxes are earmarked for special uses — some by the Michigan Constitution, some by state laws. Fuel taxes, for instance, must be spent on transportation, according to the state constitution. The six-mill property tax levied by the state goes to the School Aid Fund, but lawmakers could change that allocation with as many votes as it takes to pass any other law. These are state funds that can accomplish lawmakers’ fiscal policies, and they ought not be neglected in an assessment of state fiscal policy, which is why they are in our standard.

It’s like that in other states, too. Colorado also uses total funding and separates general fund spending from oddly named “cash funds,” which are restricted to specific purposes.

Most lawmakers and journalists in Michigan use the total spending for the topline numbers. That is fine. Total spending is a useful measure if people want to know how much money flows through state government. It is a less useful measure if the question is how much the state government has grown. State funds reflect the resources lawmakers raise from taxpayers and the spending priorities they choose to pursue. That is why most states focus on state-funded spending when presenting their budgets.

Michigan’s state-funds budget deserves more attention. It is the measure that best captures state lawmakers taxing and spending decisions.

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Cate Welch is a fiscal policy intern at the Mackinac Center for Public Policy. James M. Hohman is the director of fiscal policy at the Mackinac Center for Public Policy.

Do you ever wonder how your tax dollars are being spent? How much money doctors, public school employees and projects receive from the public? Transparency is a core duty of government, and Michigan’s Freedom of Information Act provides the tools you need to get accurate information about how the state functions.

BY CHARLIE VAN BEEK
MACKINAC CENTER FOR PUBLIC POLICY

Do you ever wonder how your tax dollars are being spent? How much money doctors, public school employees and projects receive from the public? Transparency is a core duty of government, and Michigan’s Freedom of Information Act provides the tools you need to get accurate information about how the state functions.

The Michigan Freedom of Information Act lets people file what are commonly known as Ò requests to gain access to public records from government agencies. The law promotes transparency, helps citizens educate themselves about issues, and sometimes makes it possible to hold government agencies accountable. The law enjoys broad bipartisan support.

Michigan’s FOIA law isn’t efficient, however, and two important reforms would benefit both Michiganders who file public records requests and government officials who must respond to these requests. State agencies should maintain request logs and make these easily available to the public.

Calls for reform are often met with objections about how changing FOIA practices could lead to the release of confidential or private information. But it is possible to significantly improve FOIA without risking privacy.

Numerous exemptions in Michigan’s FOIA law allow government offices to deny access to information under the claim that the records could be misused. Many of these exemptions, such for as Social Security Numbers, medical information, and other private information captured in government databases, are sensible. These and similar exemptions strike an appropriate balance by letting public bodies withhold sensitive portions of records while still requiring them to release information citizens need to understand the inner workings of government.

Even though FOIA law provides reasonable exemptions, many public bodies still resist providing basic and appropriate information in response to requests. Bureaus frequently resist or charge exorbitant fees for fulfilling requests, on the grounds that responding requires a large number of hours or the work of highly paid experts.

A public body that responds to a FOIA request must locate the relevant records, review them for sensitive information, and prepare to send those records to the person or organization that requested them. Each step takes time and money to complete, and often public officials view transparency as a burden rather than a core obligation of good governance.

FOIA law recognizes the competing needs for transparency and efficient government operations. It requires public bodies to respond to FOIA requests within five business days, but it gives them some leeway. An office may take a 10-business-day extension for complicated requests, after which it must provide the records.

Alternatively, it may respond with an estimate of the time and expense needed to fulfill the request. A public office that chooses this approach does not need to do anything else until the requester pays half of the estimated request or files an appeal to challenge the fee.

Unfortunately, FOIA law rarely works as cleanly as the process would suggest. Government officials too often take the 10-day extension as a given, and even simple requests face unreasonable delays. An office also has almost unlimited discretion when estimating how long it will take to complete a request.

The Mackinac Center sent a FOIA request to the University of Michigan, asking how it spent money from a donor. The university estimated it would need 45 business days and 6.75 hours of employee time to find the answer. More than 200 days later, the university gave a fuller answer, far exceeding the estimated time required.

Even then, it turned over only partial results, and it failed to reveal how it spent the donated dollars. Its delays added hundreds of dollars to the cost of the search.

Lawmakers could take many steps to improve FOIA law, but public offices themselves could help improve transparency and efficiency without making significant changes to the law or government operations.

An easy first step would be for government agencies to create a publicly available log of the FOIA requests they receive. They should already have such a log for their internal purposes, but a public log should supply information such as requests received, requests granted in full, requests granted in part, and requests denied. It also should include exemptions claimed, the cost of responding to the request, and the time required to respond. Such a log would better allow the public to understand how public servants fulfill their obligations to transparency.

The second reform would be to create and publish a searchable database of records a government entity supplied in response to past requests. Future requestors would be able to create a report showing the request, the cost of the information, and any responsive information that resulted.

These two reforms would benefit the public by increasing transparency. They also would benefit government by reducing redundant requests. By making previously released records accessible to the public, the government could avoid having to process new FOIA requests looking for the same information. Requestors, meanwhile, could avoid weeks-long waits for already released data.

A few public bodies have undertaken these reforms. Eastern Michigan University produces a limited version of a FOIA log that shows basic information, including the number of requests the university received, how it fulfilled each request, and even how many requests it did not fulfill. More public bodies should follow Eastern’s lead.

These reforms would require only minor changes to current practices, but they would have an outsized impact on government transparency. Public bodies that wish to demonstrate their commitment to responsible and open government can voluntarily implement these reforms. 
These two fixes would improve the public’s understanding of how government works and increase public trust. Putting them in place would show that the state government is committed to dealing truthfully with the public.

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Charlie Van Beek is a communications intern at the Mackinac Center for Public Policy.

 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. 

   ___________________

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.