Addressing the issue of preliminary injunction standards in patent cases, the U.S. Court of Appeals for the Federal Circuit concluded that when it comes to determining whether a preliminary injunction should be issued in patent cases, the Federal Circuit’s preliminary injunction standards apply, rather than those of the regional circuit in which the district court hearing the patent case sits.  Revision Military Inc. v. Balboa Manufacturing Co., Case No. 11-1628 (Fed. Cir., Nov. 27, 2012) (Newman, J.). 

Revision Military filed a patent infringement case in the U.S. District Court for the District of Vermont (part of the U.S. Court of Appeals for the Second Circuit), alleging that Balboa Manufacturing’s new “Bravo” design protective goggles (also called “Bobster Bravo”) copied and infringed Revision’s “Bullet Ant” goggles covered by design patents. After the suit was filed, Revision moved for a preliminary injunction, seeking to enjoin Balboa from making and selling the Bobster Bravo goggles while the litigation was pending.  In denying Revision’s preliminary injunction motion the district court applied the Second Circuit’s heightened standard of proof of likelihood of success on the merits, instead of the Federal Circuit standard for consideration of whether to impose such relief.  Revision appealed. 

The Federal Circuit, in reversing the district court’s decision, held that the trial court should have used the standard articulated by the Federal Circuit:

“With respect to the applicable standard, the Federal Circuit has explained that a preliminary injunction enjoining patent infringement . . .  ‘involves substantive matters unique to patent law and, therefore, is governed by the law of this court . . .’”

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“Substantive matters of patent infringement are unique to patent law, and thus the estimated likelihood of success in establishing infringement is governed by Federal Circuit law,” the panel said. “Revision need not meet the Second Circuit's heightened ‘clear or substantial likelihood’ standard, but rather the Federal Circuit’s standard of whether success is more likely than not.”

Practice Note:  By indicating that preliminary injunction issues related to patent cases are “a patent specific issue,” an interesting question is whether the Federal Circuit’s ruling here is conflict with the Supreme Court’s guidance in eBay v. MercExchange, a case in which the Supreme Court considered whether the test for injunctive relief for patent infringement should be treated differently than it is treated in other areas of law, and ultimately ruled that it should not.