Thursday, September 24, 2015

CAFC tackles preliminary injunction issues in M-I LLC V. FPUSA, LLC

The outcome

FPUSA, LLC, appeals from an order of the district
court granting M-I LLC’s motion for a preliminary injunction.
The district court enjoined FPUSA from promoting,
selling, or renting a system for recovering drilling fluid
that infringes claims 1 and/or 16 of M-I’s patent. Because
the district court did not abuse its discretion in granting
an injunction with respect to claim 16, we affirm the
preliminary injunction as to claim 16, vacate as to claim
1, and remand with instructions to reform the injunction
consistent with this opinion.

As to claim 16:

The district court did not abuse its discretion in granting
a preliminary injunction as to claim 16. The district
court did not err in finding that M-I is likely to prove
infringement of a valid claim. The court’s construction of
the “first” and “second” modifiers was proper in light of
the claim language and the specification. And based on
FPUSA’s representation that the Vac-Screen system only
applies a vacuum to one screen, the one closest to the
shaker outlet, the district court’s finding that the VacScreen
system meets the “first screen” limitation was not
clearly erroneous. Nor was the district court’s determination
that the Vac-Screen likely meets the “degassing
chamber” limitation, based on the disclosures in the ’959
patent and Technology Evaluation Report.
The district court also did not err in finding that
FPUSA had not raised a substantial question of invalidity.
There is a statutory presumption that issued patents
are valid. 35 U.S.C. § 282. The district court did not err
in determining that the claims of the ’288 patent are
supported by the written description in the parent application,
which was filed in 2006.

Further, the district court did not err in determining
that irreparable harm would likely result based on the
evidence in the record. FPUSA admitted in its briefing
before the district court that enjoining FPUSA would
“leav[e] M-I as the sole source of a substitute technology,”
J.A. 480, which means that absent an injunction, M-I
would likely suffer an irreparable loss of market share.
See Robert Bosch LLC v. Pylon Mfg. Corp., 659 F.3d 1142,
1151 (Fed. Cir. 2011) (“[The existence of a two-player
market] creates an inference that an infringing sale
amounts to a lost sale for the patentee.”). M-I only started
marketing its product in 2015, while FPUSA has been
on the market since 2010. And while FPUSA faulted
M-I’s reliance on a third-party report as evidence of
FPUSA’s inability to satisfy a judgment, FPUSA did not
offer any evidence of its profitability. Finally, the district
court did not err in finding that the balance of equities is
neutral, and that the public interest weighs in favor of an



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