Friday, November 18, 2011

O2 Micro v. Beyond Innovation

On being hoisted on one's own petard:

Here, BiTEK submitted to the district court the pro- posed language that it now claims is “overbroad” and “exceeds the authority of a United States District Court.” Appellant Br. at 40–41. While BiTEK asserts that it reserved the right to later object to the language of the injunction that it proposed, we do not find it to be a suit- able tactic in litigation to propose language to a court with one’s fingers crossed, so to speak, and come back later and disown that language. We might have consid- ered BiTEK’s arguments differently had the district court, without briefing, adopted O2 Micro’s proposed injunction and had BiTEK properly objected to the form of the injunction. See Ortho-McNeil Pharm., Inc. v. Lupin Pharm., Inc., 603 F.3d 1377, 1381–82 (Fed. Cir. 2010). But we will not review the form of the injunction where BiTEK actively participated in the crafting of the injunc- tion and, in the course of that participation, offered the district court the specific language that BiTEK now claims was an abuse of discretion to adopt. Thus, the district court did not err in holding BiTEK to the lan- guage it proposed.

Cross-reference: Cayman Islands


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