I don't see it. According to what I read, royalty income from patents is subject to the NIIT.
According to PWC, patent income is considered portfolio income and therefore subject to NIIT.
https://www.pwc.com/us/en/washington-national-tax/newsletters/private-company-services-tax/assets/pw...
Other sources seem to indicate the same thing. From my view, you are trying to have your cake and eat it too. If the royalty income is afforded LTCG treatment, why wouldn't it be subject to the NIIT? However, you can either consult a tax professional with a background in the tax treatment of intellectual property, or elect to not pay the NIIT on such income, be audited by the IRS, and take the case to the Tax Court.
