To obtain a preliminary injunction, a plaintiff must show that it is likely to succeed on the merits, that it is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of the hardships tips in its favor, and that an injunction is in the public interest. The patentee has the burden to show that its potential losses cannot be compensated by money damages, and are therefore irreparable. Automated Merchandising v. Crane. This evidentiary showing mustn’t be speculative. Id. And the district court may consider past harm to a patentee in finding irreparable harm. I4I v. Microsoft. Where a multi-component product is at issue, the movant must also show a sufficiently strong causal nexus relating the alleged harm to the infringement. Injunctions have satisfactory scope when they prohibit infringement of the patent by the adjudicated devices and infringement by devices not more than colorably different from the adjudicated devices.
Below are district court cases granting preliminary injunctions for the period January 1, 2010 to November 2019. The table only includes contested preliminary injunction motions, and does not include permanent injunctions or temporary restraining orders.
| Court | Case | Enjoined Product(s) | Patent(s) Title | Irreparable Harm |
| FIRST
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| D. Mass. | Momenta Pharmaceuticals, Inc., et. al. v. Amphastar Pharmaceuticals, Inc., et. al., 1-11-cv-11681 (D. Mass. Oct. 28, 2011) | Anticoagulant generic drug | – Analysis of sulfated polysaccharides;
– Evaluating mixtures of low molecular weight heparins by chain profiles or chain mapping |
In view of plaintiffs’ showing of infringement and validity, the Court applies the presumption of irreparable harm. Notwithstanding, plaintiffs have shown that the marketing of defendants’ product will cause them immediate and long-term irreparable harm. That harm would likely involve price erosion, lost market share, loss of market capitalization, reputational injury and threats to both the funding of ongoing research development and the hiring and retention of critical scientific talent. |
| D. Mass. | Genzyme Corporation v. Seikagaku Corporation, et. al., 1-11-cv-10636 (D. Mass. Dec. 30, 2011) | Knee pain relief treatment | – Regimens for intra-articular viscosupplementation | — |
| SECOND
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| E.D.N.Y. | Blumenthal Distributing, Inc. v. Executive Chair, Inc., 1-10-cv-01280 (E.D.N.Y. Nov. 9, 2010) | Office chairs | – Chair (design patent) | The principle value of a patent is a right to exclude, which is difficult to protect through monetary damages. Moreover, with respect to its trademark and unfair competition claims, plaintiff stands to lose its accumulated good will and reputation. Proving loss of sales due to infringement is notoriously difficult. |
| S.D.N.Y. | Hutzler Manufacturing Company, Inc. v. Bradshaw International , Inc., 1-11-cv-07211 (S.D.N.Y. July 25, 2012) | Food storage containers | – Onion container (design patent);
– Garlic container (design patent) |
Plaintiff has shown that its sales have dropped significantly since Defendant’s products entered the marketplace, and that it has lost certain customers who have switched to Defendant’s products. The effect of Plaintiff’s loss of clients is difficult to quantify, and Plaintiff may not be able to recover these lost relationships. Moreover, Plaintiff has shown that if Defendant is not enjoined, Plaintiff will lose its market leadership. Plaintiff also argues that Defendant’s distribution of the infringing products will result in irreparable price erosion of Plaintiff’s patented products in that Plaintiff will be forced to drastically change its pricing structure in order to complete with lower-priced knock-off’ products. |
| D. Conn. | Covidien Sales LLC et al v. Ethicon Endo-Surgery, Inc., 3-14-cv-00917 (D. Conn. Oct. 15, 2014) | Surgical blade | – Ultrasonic curved blade | Plaintiff argues that it has lost, and will continue to lose, market share, goodwill, reputation, and business opportunities as a result of Defendant’s
sales of its product. Plaintiff has pointed to a variety of Defendant’s marketing material that directly compares Defendant’s product to Plaintiff’s products, including Defendant’s website. Plaintiff points out that Ethicon’s marketing of its product falsely gives consumers the impression that Defendant was the innovator of the feature. |
| E.D.N.Y. | Veeco Instruments Inc. v. SGL Carbon, LLC et al, 1-17-cv-02217 (E.D.N.Y. Nov. 2, 2017) | Wafer carrier | – Susceptorless reactor for growing epitaxial layers on wafers by chemical vapor deposition | Plaintiff alleges that as a result of Defendant’s continuing supply of infringing products, Plaintiff has suffered and will continue to suffer loss of customers, orders, and market share; price erosion; loss of business opportunities; and loss of goodwill and damage to reputation. Moreover, Plaintiff is forced into direct competition, in a limited market with few potential customers, with a product embodying its own patented design. |
| N.D.N.Y. | MacDermid Enthone Inc. v. BASF Corporation, 1-15-cv-00233 (N.D.N.Y. Mar. 12, 2018) | Semiconductor additives | – Copper electrodeposition in microelectronics | Plaintiff and Defendant are direct competitors in
the manufacture and sale of the relevant product. Plaintiff has already lost business to Defendant, as a result of Defendant’s actions in supplying customers with products for uses that infringe the asserted patent. Plaintiff has also experienced price erosion resulting from Defendant’s encroachment into the market. |
| S.D.N.Y. | Belleau Technologies, LLC v. JoeAllenPro Limited et al, 1-18-cv-06319 (S.D.N.Y. Jul. 31, 2018) | Software mobile application | – Method and system for dynamic speech recognition and tracking of prewritten script | — |
| D. Conn. | LEGO A/S et al v. ZURU Inc. 3-18-cv-02045 (D. Conn. July 8, 2019) | Toy figurine | – Building block from a toy building set (design patent);
– Element of a construction set (design patent); – Element for a toy construction set (design patent) |
Harm to a patent holder’s goodwill supports issuance of a preliminary injunction. There’s evidence concerning the immeasurable harm to the Plaintiff and its brand resulting from Defendant’s infringing products. Plaintiff is way ahead all other relevant companies in terms of brand equity, meaning that Plaintiff has the largest amount of brand equity to lose. Plaintiff has also shown that the patent infringement will lead to Plaintiff losing market share. |
| THIRD
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| D.N.J. | Albany Molecular Research, Inc. v. Dr. Reddy’s Laboratories, Ltd. et al., 2-09-cv-04638 (D.N.J. June 14, 2010) | Generic allergies drug | – Piperidine derivatives and process for their production | Plaintiff argues that it will lose market share, suffer price erosion, lose research opportunities, and lose brand recognition if the generic product is allowed on the market and later found infringing. Plaintiff further argue that defendant may not be able to pay the damages at trial. |
| D.N.J. | Hoffmann-La Roche Inc. v. Cobalt Pharmaceuticals Inc. et al., 2-07-cv-04539 (D.N.J. Nov. 10, 2010) | Generic osteoporosis drug | – Diphosphonate derivatives, pharmaceutical compositions and methods of use;
– Method of treatment using bisphosphonic acid |
Plaintiff has shown that it is likely to suffer irreparable harm if an injunction does not issue. Clearly, the entry of a generic competitor into the marketplace will hurt Plaintiff’s sale of its product. The phenomenon of price erosion in the pharmaceutical industry is well-known. Moreover, third-party payors control a substantial portion of Plaintiff’s sales, and that a generic entrant into the marketplace has the potential to irreversibly alter the reimbursement relationship, producing an irreparable impact on Plaintiff’s business. Plaintiff would further have to eliminate much of its sales force. |
| M.D. Pa. | Arlington Industries, Inc. v. Bridgeport Fittings Inc, 3-06-cv-01105 (M.D. Pa. July 18, 2011) | Electric conduit fitting | – Quick-connect fitting for electrical junction box | Plaintiff and Defendant are fierce direct competitors in the relevant market. Prior to Defendant’s entry into the market for the relevant product, Plaintiff possessed one hundred percent of the market. Each sale of a Defendant’s product likely deprives Plaintiff of market share, revenue, and brand recognition. Moreover, Plaintiff strategically declines to license the patent on its product and, instead, exploits its monopoly to exclude potential rivals. |
| D. Del. | Sciele Pharma Inc., et. al. v. Lupin Ltd., et. al., 1-09-cv-00037 (D. Del. Dec. 6, 2011) | Generic high blood sugar medication | – Controlled release oral tablet having a unitary core;
– Controlled release metformin compositions |
Plaintiff projects that its goodwill will suffer as a result of the entry of Defendant’s generic drug. Moreoever, if Defendant’s product remains in distribution channels while Plaintiff awaits trial, Plaintiff avers, its product could lose up to 90 percent of its sales while Defendant’s generic products are in the marketplace. Plaintiff further argues that Defendant’s entry into the market will create price erosion. |
| D. Del. | Edwards Lifesciences AG et al v. Corevalve Inc., et al, 1-08-cv-00091 (D. Del. April 15, 2014) | Heart valves | – Valve Prothesis for Implantation in the Body and a Catheter for Implanting such Valve Prothesis | Plaintiff argues that it will lose sales, market share, and revenue if Defendant is permitted to launch its product in the US. Plaintiff points to the fact that Defendant will be Plaintiff’ only competitor in the United States and will compete directly against Plaintiff for the same customers. (D.I. 550 at if 5.) Plaintiff also highlights the drop in its market value and the negative projections regarding Plaintiff’s future that have accompanied Defendant’ s announcement of an accelerated launch in the US. Based on Defendant’ s history of undercutting Plaintiff’ prices in Europe, Plaintiff warns that Defendant’s entry into the United States market will cause similar erosion in the price of its product. |
| D. Del. | M/A-COM Technology Solutions Holdings, Inc. v. Laird Technologies, Inc., 1-14-cv-00181 (D. Del. June 16, 2014) | GPS modules | – Integrated global positioning system receiver | Plaintiff’s relationship with an important customer is being damaged in a manner that money damages will not fully remedy, and in an amount not entirely calculable. Nearly all of Plaintiff’s sales for its patented technology are made to this primary customer, and these sales generate more than a quarter of all revenues to Plaintiff. Plaintiff has proven that it has had to give price concessions to the primary customer, which were required at least in large part because of the emergence of a competitor for technology previously sold only by Plaintiff. The primary customer demanded and achieved these price decreases by leveraging Defendant as a second source and, ultimately, awarding some business to Defendant. Some evidence shows that denying the preliminary injunction could impair Plaintiff’s ability to pursue research and development and lead to layoffs. |
| D.N.J. | Power Survey, LLC v. Premier Utility Services, LLC et al, 1-13-cv-05670 (D.N.J. Nov. 21, 2014) | Voltage detectors | – Apparatus and method for monitoring and controlling detection of stray voltage anomalies | There is evidence that Plaintiff suffered, and continues to suffer, price erosion and loss of market share, as a result of Defendant’s conduct. The relevant business is relatively new and the only providers of service in this field are Plaintiff and Defendant. Without the likely infringement by Defendant, Plaintiff likely would be able to establish its market presence and create strong and lasting business relationships. Defendant has directly competed with Plaintiff and has won at least four contracts by providing a lower price, two of which were clients of Plaintiff’s. Plaintiff’s presence in the market is being harmed because Defendants can undercut the market both with a cheaper and inferior product. This may also have an adverse effect on Plaintiff’s reputation because some may assume that all of these products are of inferior quality regardless of which product they are utilizing. |
| D. Del. | CryoLife, Inc. v. CR Bard, Inc. et al, 1-14-cv-00559 (D. Del. March 10, 2015) | Clotting product | – Topically Applied Clotting Material | There is sufficient record evidence that Declaratory Defendant’s product is in direct competition with Declaratory Plaintiff’s product and that these products are targeted to the same customers. Declaratory Defendant has made persuasive arguments for the loss of its customer base and damage to its goodwill. |
| D.N.J. | Fresenius Kabi USA, LLC v. Fera Pharmaceuticals, LLC, 2-15-cv-03654 (D.N.J. Sept. 20, 2016) | Generic thyroid drug products | – Levothyroxine formulations | Defendant indisputably seeks to be Plaintiff’s direct competitor. Through its ANDA, it seeks to market precisely the formulation as to which Plaintiff obtained FDA approval and patent protection. The right to exclude direct competition in a limited sphere is irreparably harmed by the loss of sales and the competitive foothold that the infringer will gain. The customer base comprises a relatively small class. Those customer relations, the reputation of Plaintiff, and the purchasers’ experience with the product, are therefore of primary importance. The market clout of the customers also implies that, should the price erode as a result of infringement, a price rebound may meet stiff resistance. |
| D.N.J. | Curlin Medical Inc. et al v. ACTA Medical, LLC et al, 2-16-cv-02464 (D.N.J. Jan. 13, 2017) | Infusion pump tubing | – Curvilinear peristaltic pump having insertable tubing assembly;
– Curvilinear peristaltic pump |
Plaintiff has shown likely price erosion. There is no dispute that Defendant has sold its product to customers who would have otherwise purchased Plaintiff’s product, and that Defendant sells its product at a substantial discount. Plaintiffs have pointed to evidence that Defendant has imported at least 10,000 units of the product, and that it has sold at least 1,200 of these units. Plaintiff contend that Defendant sells its competing product for as much as 35% less than Plaintiff’s price. This suggests that, unless enjoined, Defendant is poised to take a large chunk of Plaintiff’s future sales. |
| D.N.J. | INDIVIOR INC. et al v. DR. REDDY’S LABORATORIES S.A. et al, 2-17-cv-07111 (D.N.J. July 20, 2018) | Opioid addiction generic drug | – Sublingual and buccal film compositions | Plaintiff has shown, that Plaintiff will likely lose market share to Defendant’s ANDA product once it is launched and will be unlikely to recover that share, even if that product is pulled from the market. Plaintiff’s potential cuts to research and development further support a finding of irreparable harm. |
| D.N.J. | Allergan Sales, LLC et al v. Sandoz Inc. et al, 2-17-cv-10129 (D.N.J. Aug. 3, 2018) | Glaucoma and ocular hypertension generic drug | – Combination of brimonidine timolol for topical ophthalmic use
– Combination of brimonidine and timolol for topical ophthalmic use |
Plaintiff contends that Defendant’s entry would cause immediate reduction in market share and price erosion that could not be corrected even if Defendants were later forced to withdraw from the market. Plaintiffs also assert that reduction in market share would irreparably impact research and development, and damage customer goodwill. |
| D. Del. | Liqwd, Inc. et al v. L’Oreal USA, Inc. et al, 1-17-cv-00014 (D. Del. April 25, 2019) | Keratin hair care products | – Keratin treatment formulations and methods | Plaintiff presented evidence showing actual monetary harm, and reputational harm. |
| D. Del. | Novartis Pharmaceuticals Corporation v. Accord Healthcare Inc. et al, 1-18-cv-01043 (D. Del. June 24, 2019) | Multiple sclerosis drug | – S1P receptor modulators for treating relasping-remitting multiple sclerosis | Plaintiff has shown that in the absence of a preliminary injunction, it’s likely that one or more and up to six generics will undertake an at-risk launch, and as a result, Plaintiff will suffer immediate and substantial harm that cannot be remedied by money damages even if Plaintiff ultimately prevails at trial. These harms include the likely massive and immediate price erosion in the relevant market. Plaintiff will not be able to raise the price back up. Moreover, if Plaintiff tries to raise the price of its product back to the pre-infringement level, Plaintiff would be widely criticized, thereby suffering irreparable harm to its goodwill. |
| D. Del. | Nevro Corp. v. Stimwave Technologies, Inc., 1-19-cv-00325 (D. Del. July 24, 2019) | Spinal cord stimulation product | – Selective high frequency spinal cord modulation for inhibiting pain with reduced side effects, and associated systems and methods
|
Plaintiff has demonstrated that Defendant’s entry into the relevant market will likely result in irreparable harm to its goodwill and reputation. Plaintiff has built its brand on its patented technology. Plaintiff has spent hundreds of millions of dollars to bring its product to market and to support it, and that all of Plaintiff’s research and development is directed towards the patented technology. Plaintiff has never licensed its patented technology, and it publicizes in all of its marketing material and in its press releases the fact that its product is patented. Moreover, Plaintiff has established that it would suffer reputational harm resulting from the Defendant’s inferior product. |
| FOURTH
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| E.D.N.C. | Morris & Associates, Inc. v. Cooling & Applied Technology, Inc., 5-09-cv-00023 (E.D.N.C. July 30, 2010) | Poultry chilling / disinfecting equipment | – Post Chill Decontamination Tank | Plaintiff and Defendant are the sole competitors in a tight, two-competitor marketplace for the relevant product. A loss of any market share, by virtue of there being only two competitors and few customers, would at least be substantial harm to a party. Moreover, the relevant product is large, custom, expensive, and designed to last a significant lifetime of production. The record shows that once a customer purchases one of these systems, it is unlikely they will reenter the market place for a significant number of years. Thus, each sale of the product is the likely formation of a long-lasting business relationship. |
| E.D. Va. | Fred Hutchinson Cancer Research Center et al v. Biopet Vet Lab, Inc., et al, 2-10-cv-00616 (E.D. Va. March 17, 2011) | Dog breed identification kit | – Methods and materials for canine breed identification | Plaintiff asserts that they will suffer a permanent loss of customers and market share, price erosion and a loss of goodwill and reputation in the absence of preliminary relief. Plaintiff further asserts that it will suffer price erosion because Defendant has priced its products below that of Plaintiff’s products. Plaintiff also allege that it will suffer permanent loss of reputation if Defendant is allowed to continue its activities absent preliminary relief because Defendant’s products are of lesser quality and have already been ill-received by customers in the market. |
| D.S.C. | Marhaygue LLC v. Wolfpac Technologies Inc., et. al., 2-12-cv-00322 (D.S.C. May 9, 2012) | Column wrap products | – Enclosure and method for making an enclosure | Plaintiff has demonstrated it has suffered a loss of market share, which is likely to continue while Defendants’ competing product is on the market. Relevant evidence includes that Defendant and Plaintiff are head-to-head competitors, such that each lost sale to Defendants deprives Plaintiff of its market share. Moreover, Plaintiff has shown that it has lost half of its market share, as evidenced by a 50% drop in sales of its product. Second, Plaintiff has shown that it has lost business opportunities as a result of the introduction of Defendant’s product, including a loss of a license agreement. Third, Plaintiff has shown it has suffered price erosion because Defendant’s product is sold at a lower price than Plaintiff’s product. |
| M.D.N.C. | Bayer CropScience, Inc. et al v. Syngenta Crop Protection, LLC, 1-13-cv-00316 (M.D.N.C. Sept. 30, 2013) | Turf treatment product | – Fungicidal compositions for the enhancement of turf quality | Defendant’s marketing, offering to sell, and selling of its product in direct competition with Plaintiff’s product occurs only a few years prior to the expiration of Plaintiff’s patent and will prematurely take away market benefits from Plaintiff as the owner of its patent. Defendant’s marketing, offering to sell, and selling of its product has cut into Plaintiff’s market share and damaged Plaintiff’s customer goodwill and has taken Plaintiff’s customer goodwill for itself. If the injunction does not issue, Plaintiff’s continuing loss of market share and customer goodwill, which its Patent ought to protect, will accelerate. |
| W.D.N.C. | Celgard, LLC v. LG Chem, Ltd. et al, 3-14-cv-00043 (W.D.N.C. July 17, 2014) | Battery products | – Separator for a high energy rechargeable lithium battery | Irreparable harm here includes plaintiff losing goodwill, laying off employees, and loss of market share to at least some competitors who appear to be engaged in infringing activity. |
| D. Md. | Par Pharmaceutical, Inc. et al v. TWI Pharmaceuticals, Inc., 1-11-cv-02466 (D. Md. Aug. 12, 2014) | Generic drug related to AIDS | – Nanoparticulate megestrol formulations | Plaintiff has presented evidence that it would suffer more than just lost revenue. Plaintiff has also demonstrated that the lost revenue will likely force its entire branded division to shut down. Given that generic drugs quickly overtake the relevant market, the court finds it likely that, should Defendant launch its product, Plaintiff’s branded division would quickly lose an essential part of its funding and likely be forced to close. In addition, there is evidence that were Defendant to enter the market, the price erosion and revenue losses Plaintiff’s product would suffer would be impossible to reverse completely. |
| M.D.N.C. | BASF Agro B.V., Arnhem (Nl), Wadenswil Branch et al. v. Makhteshim Agan of North America, Inc. (Mana) et al., 1-10-cv-00276 (M.D.N.C. Feb. 10, 2015) | Insecticide product | – Process for the sulfinylation of heterocyclic compounds;
– Pesticidal pyrazoles and derivatives |
Because the products were manufactured using a process prohibited by the consent judgment, the court is unable to find at this time what competitive benefit or damage, if any, was caused by the violation and what remedy, if any, should be imposed for a violation. Such uncertainty supports a finding of irreparable harm. |
| FIFTH
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| E.D. Tex. | Pozen Inc. v. Par Pharmaceutical, Inc., 6-08-cv-00437 (E.D. Tex. April 14, 2011) | Generic migraine drug therapy | – Anti-migraine methods and compositions using 5-HT agonists with long-acting NSAIDs;
– Methods of treating headaches using 5-HT agonists in combination with long-acting NSAIDs; – Multilayer dosage forms containing NSAIDs and triptans |
The launch of a generic product would significantly affect Plaintiff’s revenue stream. Such a reduction of revenue would subsequently impact Plaintiff’s ability to allocate its resources to product development. Likewise, Plaintiff would be harmed from the introduction of Defendant’s ANDA product, which at a lower cost, would undoubtedly affect Plaintiff’s market share. |
| N.D. Tex. | Wheel Pros, LLC v. Wheels Outlet, Inc. et al, 3-14-cv-04230 (N.D. Tex. Dec. 22, 2014) | Automobile wheels | – Motor vehicle wheel front face (design patent);
– Wheel (design patent) |
Here, Plaintiff has provided evidence of a loss of company goodwill and market share. As for the former, Plaintiff alleges that the infringing product are of an inferior quality, unsafe, and identical to the product sold by Plaintiff. Customers who purchase Defendant’s product will likely attribute the defects of those wheels to Plaintiff, which ultimately would have a detrimental impact on Plaintiff’s company goodwill. Furthermore, Plaintiff has shown that its customers shopped at, and even purchased, Defendant’s product. This evinces a loss of market share. |
| W.D. Tex. | M-I LLC v. FPUSA, LLC, 5-15-cv-00406 (W.D. Tex. June 24, 2015) | Drilling screen | – Shaker and degasser combination | Plaintiff alleges that it will suffer irreparable harm in the absence of an injunction because (1) Defendant’s continued infringement would result in loss of market share and damage to Plaintiff’s reputation and goodwill, and (2) Defendant is unlikely to be able to satisfy a judgment. Here, the parties do not dispute that they are each other’s sole competitors in the relevant market. Defendant is a small subsidiary of a foreign corporation, and district courts have often found that money damages are insufficient in cases involving foreign infringers because it may be difficult or impossible to collect on a money judgment. |
| E.D. Tex. | Tinnus Enterprises, LLC et al v. Telebrands Corporation et al, 6-15-cv-00551 (E.D. Tex. Sept. 11, 2015) | Water balloon filler | – System and method for filling containers with fluids | Here, Plaintiff and Defendant directly compete with each other and are the only two competitors in relevant market. A pattern of price erosion has arisen from the sale of both products. Particularly, the market entry and continually reduced sale prices of Defendant’s alleged infringing product has driven down the price at which Plaintiff’s product has sold. The Court also finds that Plaintiffs have presented additional evidence of consumer confusion, harm to Plaintiffs’ reputation, and loss of goodwill. It is undisputed that Defendant had a lag time in being able to fulfill their orders for the Balloon Bonanza product they were advertising. Plaintiffs further submitted evidence of consumer confusion regarding who the true inventor is from online reviews. Plaintiffs submissions make clear that consumers are not only confused about which product is which, but also mistakenly thinking that the alleged infringing product is Plaintiff’s invention. Plaintiff has shown that the patented invention has been diluted in the minds of the consuming public and that sales of Defendant’s product has interfered with Plaintiff’s product’s mindshare and market position. |
| E.D. Tex. | Mylan Institutional LLC et al v. Aurobindo Pharma Limited et al, 2-16-cv-00491 (E.D. Tex. Nov. 21, 2016) | Biopsy dye system | – Process for preparation of isosulfan blue | With respect to lost sales, research and development, and price erosion, Plaintiff’s witness testified that Plaintiff’s product constituted a significant portion of Plaintiff’s total revenue before Defendant entered the market, and profit from the product fueled research and development. The witness testified that if half or more of Plaintiff’s revenue from its product is lost as Plaintiff projects, Plaintiff would need to eliminate or delay the research and development of new products currently in development. In addition, the witness testified that two of Plaintiff’s employees had already left the company since Plaintiff had ceased manufacturing, and that employee morale was down because manufacturing activity at the Plaintiff facility was at a standstill. There is no question that Plaintiff will lose most if not all of its sales to Defendant if infringement is allowed to continue. Finally, there is undisputed evidence that Defendant’s infringement has and is continuing to result in significant price erosion. |
| SIXTH
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| M.D. Tenn. | Anderson v. TOL, Inc., 3-12-cv-01312 (M.D. Tenn. Feb. 28, 2013) | Hover disks | – Rigid helium balloons;
– Rigid ballon |
Plaintiff testified that he has been seeking to utilize his Patents for a re-launch of the relevant product with other manufacturers, but the inability to demonstrate that he can offer an exclusive license for the Patents is preventing him from entering into any deals. Plaintiff also testified that Defendant recently has been producing products of poor quality, thereby diminishing the potential value of Plaintiff’s Patents. He also testified that Defendant has been marketing its product at a lower effective retail price than the product was previously sold for, which reduces the profit margin on each sale and thereby makes the Patents less valuable to other companies. Plaintiff testified that Defendant’s continuing use of his Patents threatened to degrade the value of those Patents to such a degree that other companies might not do business with him at all. |
| SEVENTH
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| E.D. Wis. | Kimberly-Clark Worldwide Inc., et. al. v. First Quality Baby Products LLC, et. al., 1-09-cv-00916 (E.D. Wis. May 20, 2010) | Disposable training pants | – Folding and manufacture of pants;
– Method of tucking refastenable side seams; – Apparatus and method for inspecting pre-fastened articles; – Apparatus and method for securing engagement between fastening components of pre-fastened garments |
Plaintiff has invested substantial resources in the research and development of its processes in reliance on the validity of its patents. Calculating what Plaintiff might lose as a result of price erosion as a result of Plaintiff’s need to reduce its prices to compete with Defendant’s new product made with the accused processes is not easy to determine. Even though Plaintiff may have recently obtained an agreement with a major retailer to be its exclusive supplier of its product, the fact that Defendant offers a similar product inevitably weakens Plaintiff’s negotiating position with its customers. It is also unlikely that Plaintiff will simply be able to raise its price back to where it would have been if it ultimately prevails in the lawsuit. If Defendant continues to use the accused methods to produce and sell products similar to those Plaintiff produces and sells, Plaintiff will suffer a loss of market share. While loss of market share can be measured, it is not a complete measure of damages because of the price erosion Plaintiff incurs in its efforts to maintain its market share. Finally, Defendant has failed to provide adequate evidence of its ability to satisfy a judgment should Plaintiff ultimately prevail. |
| E.D. Wis. | Encap LLC v. Oldcastle Retail Inc et al, 1-11-cv-00808 (E.D. Wis. May 18, 2012) | Soil improvement products | – PAM carrier; Soil stabilizer carrier | Defendant’s product is a copycat that appears to have pirated Plaintiff’s patented technology and product formulation. This gave Defendant the advantage of selling the same technology and product without investing in research, development, intellectual property, or market development efforts. Thus, Defendant is able to offer its product to the market at a lower price than Plaintiff. In contrast, Plaintiff is seeking to recoup its investments through sales of its products. Plaintiff contends it cannot compete with Defendant’s reduced price because Defendant reduced the price to such a point that Plaintiff cannot make a profit margin. |
| N.D. Ill. | Scholle Corporation v. Rapak LLC, 1-13-cv-03976 (N.D. Ill. March 31, 2014) | Cap assemblies | – Self sealing bag in box cap assembly | Here, Plaintiff has shown that competition with Defendant likely has led to a loss of market share and price erosion. Based on the evidence presented, there are two or three suppliers for the product in the relevant market. Thus, Plaintiff and Defendant are direct competitors. Plaintiff has lost sales to the accused product. And Defendant sells the accused product at a lower price than Plaintiff, which has exerted, and continues to exert, downward pressure on Plaintiff’s price. |
| E.D. Wis. | Precision Dynamics Corporation v. Typenex Medica,l LLC, 2-13-cv-00860 (E.D. Wis. Aug. 25, 2014) | Blood bank wristbands | – Form for wristband with adjacent labels | The plaintiff has sufficiently demonstrated that it will suffer irreparable harm in the form of price erosion, loss of market share, loss of goodwill, and loss of business opportunities. The defendant directly competes with the plaintiff. Absent a preliminary injunction, the defendant will use the invention described in the Patent to compete directly against the plaintiff in the market. |
| N.D. Ill. | Tuf-Tite, Inc. v. Federal Package Networks, Inc., 1-14-cv-02060 (N.D. Ill. Nov. 21, 2014) | Lip balm applicator | – Stick applicator with incremental dispensing action | According to Plaintiff, it will be irreparably harmed in the absence of an injunction because it will suffer from price erosion, loss of market share, lost sales, and loss of goodwill from its customer base. These contentions are supported by a declaration. |
| E.D. Wis. | Metalcraft of Mayville, Inc. v. The Toro Company et al, 2-16-cv-00544 (E.D. Wis. Aug. 1, 2016) | Lawnmowers | – Suspended operator platform | It is undisputed that prior to Defendant’s entry into the market, Plaintiff owned about 100% of the market share for the relevant product. Defendant concedes that customers in the relevant market are very brand loyal and potential lifetime customers. Indeed, some customers prefer to purchase an entire line of products from the same manufacturer for consistency, such as common look, common parts, and common warranty. Thus, the damage to Plaintiff is irreparable because it is impossible to quantify the damages caused by the loss of a potentially lifelong customer. |
| N.D. Ill. | The Chamberlain Group, Inc. v. Techtronic Industries Co., Ltd. et al, 1-16-cv-06097 (N.D. Ill. Sept. 15, 2016) | Garage door opener products | – Movable barrier operators status condition transception apparatus and method;
– Barrier movement operator battery backup and power equipment battery charging center |
Defendant’s product is a direct competitor to Plaintiff’s product in the relevant market. The evidence further showed that the market is relatively inelastic. While sales data of the accused product were not available, the data did show a marked reduction in Plaintiff’s sales immediately after the product launch. The evidence also suggests that the launch of the accused product] has caused price erosion. While there is no clear evidence that there will be a reduction in Plaintiff’s market share, nevertheless basic economic reasoning dictates that it should be suspected. |
| N.D. Ill. | Ninety7, Inc. v. Shenzhen Haofeng Plastic Electronics Co., Ltd. et al, 1-18-cv-04825 (N.D. Ill. Sept. 6, 2018) | Cordless speaker | – Portable auxiliary unit for mobile audio player | Defendant’s continued and unauthorized infringement of Plaintiff’s Patent irreparably harms Plaintiff through diminished goodwill and brand confidence, damage to Plaintiff’s reputation, loss of exclusivity, and loss of future sales. |
| N.D. Ill. | Shure Incorporated v. ClearOne, Inc., 1-17-cv-03078 (N.D. Ill. Aug. 5, 2019) | Audio conferencing product | – Integrated beamforming microphone array and ceiling or wall tile | Declaratory Defendant’s product directly competes with Declaratory Plaintiff’s in the relevant market. DJ Defendant has lost sales due to DJ Plaintiff’s product. Lost sales in the relevant market are particularly devastating because end users often use the same brand throughout their facilities and because sales tend to be infrequent given the long life-span of the product. DJ Defendant’s loss of market share is the starkest evidence of the harm it has suffered and is likely to continue to suffer. Almost immediately after DJ Plaintiff’s product was released, DJ Defendant’s sales declined. It also remains the case that DJ Defendant refuses to license its technology. |
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| D. Minn. | Luminara Worldwide, LLC v. Liown Electronics Co. Ltd. et al, 0-14-cv-03103 (D. Minn. April 20, 2015) | Flameless candles | – Kinetic flame device | It is unreasonable to assume that Plaintiff would be able to require its customers to pay higher prices in the future, if Defendant is presently permitted to continue selling its product to these customers at a consistently low price. Thus Plaintiff has presented adequate evidence showing existing price erosion. As to lost sales, Plaintiff contends that but-for Defendant’s infringement and tortious interference, particular customers would have purchased Plaintiff product instead of Defendant products. Irreparable harm is bolstered by the fact that Defendant chose to market its product with a brand name that is substantially similar to Plaintiff’s. |
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| C.D. Cal. | QBAS CO LTD et al v. C Walters Intercoastal Corporation et al, 8-10-cv-00406 (C.D. Cal. Dec. 16, 2010) | Whistle snorkels | – Snorkel with whistler | Without a preliminary injunction, Plaintiffs will not be able to exercise its exclusive right to market and sell its patented invention. Defendant has already entered into the market and begun selling a product. Plaintiff has suffered a decline in sales of their patented products due to Defendant’s product, and has responded by cutting profits and profit margins to remain competitive. Plaintiff claims that Defendant’s competition has led to a significant drop in Plaintiff’s sales and placed them in a weaker bargaining position with their suppliers and retailers. Given the relatively small size of Plaintiff, losses this great can be devastating and even put Plaintiff out of business altogether. By entering into the market and competing with Plaintiff, Defendant also hinders Plaintiff’s ability to establish goodwill with its customer base. In the relevant market, with a vast array of models and brands for any given product, a customer is likely to stick with a brand that the customer knows and trusts. Defendant’s current financial condition also warrants a preliminary injunction to prevent irreparable harm. Defendant has been unable to pay Plaintiff for past purchases of the patented product, and has made representations explaining its precarious financial position. |
| S.D. Cal. | Fitness IQ, LLC v. TV Products USA, Inc., 3-10-cv-02584 (S.D. Cal. Mar. 11, 2011) | Dumbbell product | – Exercise device (design patent) | Plaintiff as a patent holder has a right to exclude other products from the market. Sales of the less expensive product by Defendant may result in price erosion of Plaintiff’s product. Plaintiff has also shown that sales of Defendant’s product will damage its reputation and goodwill because the Defendant’s product is cheaper in quality and may break more easily. |
| D. Nev. | Aevoe Corp. v. Shenzhen Membrane Precise Electron Ltd., 2-12-cv-00054 (D. Nev. Jan. 26, 2012) | Device screen protector | – Touch screen protector | Plaintiff argues that a forward-looking money damages award would be insufficient because Defendant is a foreign company with no assets within the United States. It may be difficult or impossible to collect on a money judgment because Defendant currently is a foreign entity. |
| N.D. Cal. | Apple Inc. v. Samsung Electronics Co. Ltd., et. al., 5-11-cv-01846 (N.D. Cal. June 26, 2012) | Tablet computer | – Electronic device (design patent) | Plaintiff has shown that it was likely to suffer irreparable harm from the sales of Defendant’s products because Plaintiff and Defendant were direct competitors, and together the two companies held a relatively large market share, with few other competitors in the relevant market. |
| N.D. Cal. | LifeScan Scotland, Ltd. v. Shasta Technologies, LLC, et. al., 3-11-cv-04494 (N.D. Cal. March 19, 2013) | Blood glucose test strips | – Measurement of substances in liquids | Plaintiff asserts that the introduction of Defendant’s products to the market poses an existential challenge to the viability of Plaintiff’s business, and moreover, that Defendant will not have the resources to pay any damages award ultimately incurred. Defendant intends to sell its product at one-half the price of Plaintiff’s. Defendant’s pricing structure would cause price erosion because Plaintiff would likely need to cut the price of its product in order to compete, making it extremely difficult to raise prices back to the earlier level. Plaintiff further contends that the sale of Defendant’s product stands to jeopardize Plaintiff’s market share and its position as market leader, poses a threat to Plaintiffs’ goodwill and reputation, and could lead to a reduction in Plaintiff’s research and development budget. |
| N.D. Cal. | BlackBerry Limited v. Typo Products LLC et al, 3-14-cv-00023 (N.D. Cal. March 28, 2014) | Smartphone keyboard product | – Hand-held electronic device with a keyboard optimized for use with the thumbs;
– Handheld electronic device (design patent) |
Defendant’s product directly targets the segment of customers in the market in which Plaintiff competes. Indeed, To the extent that Defendant succeeds in allowing users to purchase its product, Defendant likely does so at the expense of Plaintiff. Given the nature of the relevant market, the monetary harm to Plaintiff cannot be adequately calculated and the loss of goodwill and loss of business opportunities is likely irreparable. |
| C.D. Cal. | Cordelia Lighting, Inc. v. Zhejiang Yankon Group Co., Ltd et al, 5-14-cv-00881 (C.D. Cal. April 27, 2015) | LED fixtures | – Recessed LED lighting fixture | After Defendant entered the market, Plaintiff’s retailer demanded price reductions, which lowered Plaintiff’s wholesale price, so the retailer could reduce the retail price. Plaintiff explains that it is difficult for manufacturers in the industry to raise prices once customers have received lower prices. Additionally, Plaintiff presents evidence of loss of market share through its economic damages expert. These sharp losses are likely exacerbated by the fact that Plaintiff and Defendant are the only two players in the relevant market. Finally, Defendant is a foreign corporation, presumably with most of its assets located overseas. Therefore, it is likely that Plaintiff would face significant difficulty in collecting damages even if it prevailed at trial. |
| C.D. Cal. | Advanced Transit Dynamics, Inc. v. Ridge Corporation, 2-15-cv-01877 (C.D. Cal. Aug. 24, 2015) | Tractor-trailer fuel reduction device | – Aerodynamic drag reducing apparatus;
– Rear-mounted aerodynamic structure for truck cargo bodies |
Plaintiff has shown direct displacement, and not mere speculation of possible market share loss, of its product by Defendant’s competing offering. Multiple customers stated that they intended to purchase the relevant product from Defendant instead of Plaintiff. The customers cited a lower-priced product and Plaintiff was the only seller of the relevant product when Defendant offered its product at a lower price. Customers then demanded price reductions from Plaintiff. |
| C.D. Cal. | Razer Auto, Inc. v. Omix-ADA, Inc., 5-16-cv-00300 (C.D. Cal. April 20, 2016) | Automotive aftermarket accessories | – Vehicle fender flares (design patent) | Here, Counterclaim Plaintiff alleges that Counterclaim Defendant’s product is unsafe for street use and in violation of federal law. If Counterclaim Defendant’s product indeed violates federal law, then it could result in a recall that will likely harm Counterclaim Plaintiff’s reputation and goodwill. Additionally, the parties are direct competitors in the relevant market. Customers are able to pull up both products in the marketplace, and select Counterclaim Defendant’s accused product for a significantly lower cost than Counterclaim Plaintiff’s patented design product. Counterclaim Plaintiff does not license its design, and Counterclaim Defendant is offering a substantially similar design through at least one identical major sales channel at a lower price. This shows a likelihood of price erosion. |
| N.D. Cal. | Illumina, Inc. et al v. QIAGEN, NV et al, 3-16-cv-02788 (N.D. Cal. Sept. 9, 2016) | DNA sequencing products | – Labelled nucleotides | The relevant market is expected to grow substantially in the near future, and Defendant has a foothold in that market due to its other product lines. Defendant seeks to usurp Plaintiff’s position in the relevant market with pirated technology. Moreover, potential customers cannot easily be recovered because the products are purchased infrequently and irregularly. At this crucial inflection point in the development of the relevant market, Plaintiff would suffer irreparable harm if Defendant were allowed to capture and define the market with pirated technology alongside its preexisting relationships and disruptive business model. |
| C.D. Cal. | Bragel International, Inc. v. Styles for Less, Inc., 8-15-cv-01756 (C.D. Cal. Dec. 2, 2016) | Bra products | – Attachable breast form enhancement system | Plaintiff argues that allowing Defendant to continue to sell infringing products will cause it irreparable harm in the form of lost sales, decreased market share, and loss of goodwill. As a competitor, Defendant is depriving Plaintiff and its retail customers of sales by selling a product which infringes Plaintiff’s patent. Furthermore, Plaintiff has documented the lower quality and manufacturing issues with the infringing products. By selling products which are difficult to distinguish in appearance, but a lower quality than Plaintiff’s product, Defendant is eroding consumer confidence in Plaintiff’s goodwill. |
| D. Nev. | Equalia LLC et al v. Kushgo LLC d/b/a Halo Board d/b/a SegAway Hoverboard et al, 2-16-cv-02851 (D. Nev. Jan. 20, 2017) | Hoverboards | – Pitch-propelled vehicle (design patent) | Plaintiff has not yet launched its product, and claims substantial investment in an initial launch that will play a significant role in its eventual market share and success. Defendants have advertised and sold the allegedly infringing product online, disrupting Plaintiff’s ability to market and launch a novel product free from unlawful competition |
| C.D. Cal. | DMF, Inc. v. AMP Plus, Inc. d/b/a ELCO Lighting et al, 2-18-cv-07090 (C.D. Cal. March 7, 2019) | LED lighting system | – Unified driver and light source assembly for recessed lighting | Plaintiff has provided some evidence that it has, indeed, lost market share and customers to Defendant. Plaintiff has also shown that Defendant is actively seeking to directly displace Plaintiff’s product with its allegedly infringing and cheaper product. Plaintiff has sufficiently demonstrated that these losses cannot be addressed by money damages alone because of the various “ecosystem” effects caused by Defendant’s infringement, including that customers are likely to keep doing business with Defendant for future projects and to tell other developers and contractors to use the Defendant brand. The threat that Defendant’s infringement poses to Plaintiff’s relationship with its sales representatives also supports a finding of likely irreparable harm. Moreover, Plaintiff has proffered expert testimony on the likely damage to its premium pricing model, as well as evidence that it has already had to lower its prices, both of which support price erosion. Money damages will be unable to restore Plaintiff’s reputation with its customers, some of whom have already indicated that they assumed both Plaintiff and Defendant’s products came from the same factory. |
| S.D. Cal. | Heat Factory USA, Inc. v. Schawbel Technologies, LLC et al, 3-18-cv-01941 (S.D. Cal. Apr. 23, 2019) | Heating products | – Heated insole remote control systems;
– Heated insole with removable and rechargeable battery; – Heated insole with removable heating assembly; – Shoe with a heated insole; – Assembly for inclusion in a heated insole; – Heated insoles; – Battery for use with a heated insole; – Heated insole with removable assembly; – Battery pack for an insole (design patent); – Insole (design patent); – Heat pack (design patent);
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The parties operate in a market where potential licensees are deterred by the existence of multiple licensees or the potential of even a single infringer. The record establishes that Counterclaim Defendant’s alleged ongoing infringement has inhibited, and will continue to inhibit, Counterclaim Plaintiff from exercising its rights as the patent holder to commercially exploit its patents by licensing its patents to a new licensee. |
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| D. Utah | EcoNova, Inc. v. DPS Utah et al, 1-12-cv-00174 (D. Utah Nov. 28, 2012) | Wastewater centrifugal separator | – Centrifugal pressurized separators and methods of controlling same;
– Methods for centrifugally separating mixed components of a fluid stream under a pressure differential; – Methods for centrifugally separating mixed components of a fluid stream; – Centrifugal separators; Method for separating particulate matter from a fluid stream |
Here, a significant nexus exists between the patented product and Plaintiff’s existence as a viable company. Plaintiff’s product is its business. Harm to sales of the product directly impacts Plaintiff’s bottom line. As the rights-holder, Plaintiff would lose the full value of the five patents underlying the product. Moreover, Plaintiff has shown a likelihood of success on the merits of its infringement claim, which supports a finding of irreparable harm. Plaintiff and Defendant are arguably the lone competitors in a highly specialized and emerging market. Defendant has an unfair advantage because it is able to undercut Plaintiff’s price by benefitting from Plaintiff’s investment in the technology. This direct competition will likely lead to price erosion for a product priced to incorporate the cost of research and development. This is something that Plaintiff may not be able to reverse. Although it is a wholly-owned subsidiary of a larger, multi-national corporation, Defendant has not provided any concrete assurances that Plaintiff would be able to get beyond the corporate shield of liability. For these reasons, the court is skeptical that the Defendants would be able to satisfy a judgment concerning a multi-million dollar business venture. There is also evidence of harm to the reputation of Plaintiff’s product. |
| D. Utah | Won Door v. Cornell Iron Works, 2-13-cv-00331 (D. Utah Oct. 3, 2013) | Wall partitions | – Movable partitions, header assemblies for movable partitions, and methods of forming header assemblies for movable partitions | Both parties agree that the only buyer in the relevant market requires use of the patented technology in its bid specifications. Therefore, to participate in the market, Defendant must use Plaintiff’s design. This requires Plaintiff to compete against its own invention and strips Plaintiff of its right to exclusivity of its innovation. |
| D. Utah | Catheter Connections v. Ivera Medical Corporation, 2-14-cv-00070 (D. Utah April 24, 2014) | Catheter caps | – Disinfecting caps for medical male luer connectors | Plaintiff is likely to be irreparably harmed if Defendant is allowed to continue making, using, selling, offering for sale, and/or importing the accused product because such conduct will result in Plaintiff’s loss of sales, loss of market share, and price erosion. |
| D. Colo. | Port-a-Pour, Inc. v. Peak Innovations, Inc. et al, 1-13-cv-01511 (D. Colo. June 17, 2014) | Concrete equipment | – Chemical dispensing system for a portable concrete plant | Despite Defendant’s agreement that its rights to Plaintiff’s products and proprietary information related to same would terminate and revert to Plaintiff upon termination of the Licensing Agreement, the evidence shows that Defendant continued to use those rights illegally. By doing so, Defendant usurped Plaintiff’s business, as people ended up talking to Defendant about the Plaintiff products and Plaintiff lost valuable leads. Further, Defendant’s conduct made it impossible for Plaintiff to license its product line to anyone else. |
| D. Kan. | Parah, LLC et al v. MoJack Distributors, LLC d/b/a Scent Crusher, 6-18-cv-01208 (D. Kan. Aug. 22, 2018) | Portable ozone generator | – Method of descenting hunter’s clothing | Because Plaintiff is competing head-to-head with Defendant, every sale by Defendant of its products likely will be a lost sale for Plaintiff. As to economic harm, Plaintiff has presented evidence that it lost customers and potential sales to Defendant. When Defendant advertised its new products, many customers responded to those advertisements stating that they intend to buy the products or that they have already preordered one. Plaintiff has also demonstrated that because it competes head-to-head with Defendant, it may suffer immeasurable losses from price erosion because of Defendant’s lower prices. If Plaintiff keeps its current prices, it will lose more customers and market share. Ozonics’ claims of loss of goodwill and reputational harm due to damage to its reputation as an innovator and due to its inability to enforce its patents also support a finding of irreparable harm. |
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| M.D. Fla. | Design Pallets, Inc. v. Shandon Valley Transport Solutions USA, LLC, et. al., 6-12-cv-00669 (M.D. Fla. June 5, 2012) | Corrugated pallets | – Foldably constructed force-resisting structures;
– Force resisting corrugated assembly |
Plaintiff argues that money damages is an insufficient remedy because the harm it has suffered and will continue to suffer is the loss of valuable customers, specific and prospective sales leads, customer goodwill, and injury to business and reputation. Plaintiff also cites its agreement, which provides for injunctive relief. In further support, Plaintiff specifically identifies that if the injunction is not granted, Plaintiff may lose its business relationships with a specific customer and loss of sales would be unquantifiable as would the loss of its competitive advantage. Plaintiff also assets that because it has lost control of its intellectual property, Defendant is able to capitalize on business relationship while using Plaintiff’s patents. |
| M.D. Ga. | Merial Limited, et. al. v. Velcera, Inc., et. al., 3-12-cv-00075 (M.D. Ga. June 29, 2012) | Parasiticide products | – Insecticidal combination to control mammal fleas, in particular fleas on cats and dogs | The Court concludes that if the launch of Defendant’s product is not enjoined, Plaintiff is likely to suffer loss of market share, price erosion and loss of recommendations. |
| M.D. Fla. | Advantus, Corp. v. T2 International, LLC, 3-13-cv-00240 (M.D. Fla. May 30, 2013) | Pool floats | – Buoyant cushion | Plaintiff has shown that the parties are in direct competition. In addition, Plaintiff showed that if Defendant continues to sell its products, Plaintiff faces a substantial risk of the loss of market share, price erosion, damage to its customer relationships, and loss of business opportunities. Plaintiff adds that the parties’ products are advertised and sold through similar channels. Moreover, there is a substantial likelihood that Plaintiff has lost and will continue to lose sales through its catalogue and other marketing channels arising from the confusion in the market caused by Defendant selling an infringing product. |
| M.D. Fla. | Pierce Manufacturing, Inc. v. E-One, Inc. et. Al, 8-18-cv-00617 (M.D. Fla. June 13, 2018) | Fire trucks | – Quint configuration fire apparatus | Plaintiff has shown by concrete examples, that when it sells its patent-covered product to a customer, there is a reasonable likelihood that the customer will buy other products as well. If Defendant sells its allegedly infringing product to customers, the plaintiffs opportunity to make sales of other products to those customers in all likelihood will be lost. Moreover, there is no apparent way to quantify the value of those lost sales. |
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