CAFC does preliminary injunctions/design patents in Revision Military v. Balboa
The district court denied the preliminary injunction.1 On Revision’s appeal, we conclude that the district court erred in applying 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. We thus vacate the denial of the preliminary injunction, and remand for redetermination of the request on the appropriate standard.
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. 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. In turn, the weight of the likelihood may be considered as an equitable factor, along with issues of the position of the parties with respect to the status quo, in the ultimate balance of equities.
Of design patent infringement:
The law of design patent infringement is stated in Gorham Co. v. White, 81 U.S. 511 (1871), as whether “in the eye of an ordinary observer, giving such attention as a pur- chaser usually gives, [the] two designs are substantially the same.” Id. at 528. In Egyptian Goddess, Inc. v. Swisa, Inc., 543 F.3d 665 (Fed. Cir. 2008) (en banc) the court confirmed that “in accordance with Gorham . . . we hold that the ‘ordinary observer’ test should be the sole test for determin- ing whether a design patent has been infringed.” Id. at 678.
The en banc court’s purpose was to lay to rest the “point of novelty” test for design patent infringement, and to rein- force the principles established in Gorham. See id. at 672 (“we conclude that the point of novelty test, as a second and free-standing requirement for proof of design patent in- fringement, is inconsistent with the ordinary observer test laid down in Gorham”); id. at 677 (“we hold that the ‘point of novelty’ test should no longer be used in the analysis of a claim of design patent infringement”).