In this post, I will analyze the balance of the hardships prong for a post-eBay injunction.
Injunction elements
A plaintiff seeking a permanent injunction must show (1) that it has suffered irreparable harm; (2) that remedies available at law (monetary damages) are inadequate to compensate for the harm; (3) that the balance of hardships to the parties favor the plaintiff; and (4) that the public interest would not be disserved by the injunction. Ebay v. MercExchange. The elements are the same for a preliminary injunction, except that the movant must show “a reasonable likelihood of success on the merits” in the preliminary stage. Sciele Pharma v. Lupin. The district court’s decision to grant or deny an injunction is reviewed for abuse of discretion. eBay.
Balance of hardships generally
In balancing the hardships at the permanent injunction stage, the district court “assesses the relative effect of granting or denying an injunction on the parties.” I4I v. Microsoft. At the preliminary injunction stage, the district court balances the plaintiff’s irreparable harm with the “harm that would be suffered by Defendants by virtue of an erroneous grant.” Canon v. GCC (nonprecedential). A harm fully compensable by a money-damage award does not weigh in the balance. Id. “[T]he balance considered is only between a plaintiff and a defendant;” so the effect on third parties (eg customers) “is irrelevant under this prong of the injunction test.” Acumed v. Stryker.
At the Federal Circuit, a plaintiff will generally prevail on the balance of the hardships if irreparable harm is found. Still, the Federal Circuit has given us some factors to consider in making the determination.
Balance of hardships factors
Plaintiff’s market conditions. In balancing the hardships, the district court considers “the relative size of the companies and the relative commercial effect that the injunction would have.” Acumed. If “the patented technology is central to [plaintiff’s] business,” the court is more likely to find that the balance favors an injunction. See, e.g., I4I v. Microsoft (affirming a permanent injunction grant partly because “most of [plaintiff’s] products are based on the” patent, and “[plaintiff’s] market share, revenues, and business strategy are similarly tied to the patented method”); Acumed (affirming permanent injunction grant). But a finding that plaintiff heavily relies on the patent or that plaintiff is a small company doesn’t automatically balance the hardships in plaintiff’s favor. See, Activevideo v. Verizon (vacating grant of permanent injunction). Lastly, if the harm to plaintiff is slight, eg because the plaintiff doesn’t sell any products embodying the invention, a court may find that the balance favors defendant. See Celgard v. LG (reversing preliminary injunction grant) (nonprecedential).
Defendant’s market conditions. The Federal Circuit is generally less tolerant to defendant’s market pleas when balancing the hardships. If the patented invention represents “only a small portion of [defendant’s] sale,” the court is more likely to grant the injunction. Acumed (affirming a permanent injunction grant); see also I4I v. Microsoft. But the converse isn’t true. A defendant “cannot escape an injunction simply because it is smaller than the patentee or because its primary product is an infringing one.” Bosch v. Pylon (reversing denial of permanent injunction). Also, that an “injunction would put [defendant] out of business” is a factor to consider, but it’s not dispositive in the hardships analysis. Aria v. Sequenom (vacating denial of preliminary injunction).
Defendant’s expenses related to an infringing product. In the hardships analysis, the court will ignore defendant’s “expenses incurred in creating the infringing” products (ie, sunk costs in designing and marketing the infringing product) and “the cost of redesigning the infringing product.” I4I v. Microsoft (affirming permanent injunction grant); see also Acumed (affirming a permanent injunction grant).
Defendant’s noninfringing alternatives. The court is more likely to find the balance favors an injunction when the defendant has a readily available noninfringing alternative, or when the defendant can easily design around the infringing features. See, e.g., Douglas v. Buyers (reversing denial of permanent injunction); Apple v. Samsung (2015) (vacating denial of permanent injunction); Acumed (affirming permanent injunction grant).
Many people suffer from this condition, and it is easy to administer and safe to use by all men who want to increase your business then you must have a web site. buying viagra uk look at this storefront So if you viagra discount prices are looking for high-end rifle scopes then Nightforce Competition is the perfect rifle scope for you. They may have variation in age, lifestyle, physical and mental health. http://cute-n-tiny.com/cute-animals/baby-giraffe-with-a-bottle/ on line levitra It is a delicious cialis 20 mg dark berry packed with natural antioxidants, including vitamin C, vitamin E and special phytonutrients called anthocyanin.
Plaintiff’s licensing. That plaintiff has licensed the invention to another is a factor, but it’s not dispositive in the hardships analysis. See Abbott v. Sandoz (affirming preliminary injunction grant).
Sunset provision. A reasonable sunset provision may ameliorate the hardships of an injunction on a defendant, and thus supports plaintiff in the hardships analysis. See Broadcom v. Qualcomm (affirming permanent injunction).
Addendum (subsequent relevant Federal Circuit cases):
Plaintiff and defendant’s market conditions:
Preliminary injunction upheld because the loss of a potential lifelong customer is irreparable (Metalcraft of Mayville v. Toro)
Denial of preliminary injunction is vacated as it was based on a flawed claim construction (Liqwd v. L’Oreal)
Infringement, direct competition, and past harms support permanent injunction against generics company (Endo v. Teva)
Lost profits and permanent injunction found appropriate in two-supplier market (TEK Global v. Sealant Systems)