The CAFC addresses preliminary injunctions in Blephex case

In February 2019, Myco Industries, Inc. (“Myco”) began marketing a product it called the AB Max at a trade show in New Orleans. The AB Max is a device for treating blepharitis.1 A month later, BlephEx, LLC (“BlephEx”) filed an application that would become United States Patent Number 10,449,087 (“the ’087 patent”). On October 22, 2019, the United States Patent and Trademark Office issued the ’087 patent, entitled “Instrument for Treating an Ocular Disorder.” The same day, BlephEx sued Myco and its chairman, John R. Choate, in the Eastern District of Michigan, alleging that the AB Max infringed claim 16 of the ’087 patent.2 Soon thereafter, the district court granted a preliminary injunction enjoining Myco and those acting on its behalf from, inter alia, selling, distributing, or offering to sell or distribute the AB Max product. See BlephEx, LLC v. Myco Indus., Inc., No. 2:19-CV-13089, 2020 WL 5951504 (E.D. Mich. Oct. 8, 2020) (“Preliminary Injunction Decision”); BlephEx, LLC v. Myco Indus., Inc., No. 2:19-CV13089, 2020 WL 7134932 (E.D. Mich. Nov. 25, 2020) (“Reconsideration Decision”). Myco appealed.

Because the district court did not abuse its discretion in granting the preliminary injunction, clearly err in its underlying factual findings, or abuse its discretion in setting the scope of the preliminary injunction, we affirm.

A party may obtain a preliminary injunction by showing that (1) it is “likely to succeed on the merits,” (2) it is “likely to suffer irreparable harm in the absence of preliminary relief,” (3) the “balance of equities tips in [its] favor,” and (4) “an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). The burden is always on the movant to show that it is likely to succeed on the merits. And in the context of a patent infringement suit, “[a] patent holder seeking a preliminary injunction bears the burden of establishing a likelihood of success on the merits with respect to the patent’s validity.” Entegris, Inc. v. Pall Corp., 490 F.3d 1340, 1351 (Fed. Cir. 2007) (citing Helifix Ltd. v. Blok-Lok, Ltd., 208 F.3d 1339, 1351 (Fed. Cir. 2000)). Absent an invalidity defense, “the very existence of the patent with its concomitant presumption of validity satisfies the patentee’s burden of showing a likelihood of success on the validity issue.” Titan Tire Corp. v. Case New Holland, Inc., 566 F.3d 1372, 1377 (Fed. Cir. 2009) (citations omitted). But if the accused infringer presents a substantial question of validity, “i.e., asserts an invalidity defense that the patentee cannot prove ‘lacks substantial merit,’ the preliminary injunction should not issue.” Entegris, 490 F.3d at 1351 (quoting Genentech, Inc. v. Novo Nordisk, 108 F.3d 1361, 1364 (Fed. Cir. 1997)).