Docket No. 2011-1096
BRYSON(d), O’MALLEY, REYNA
October 13, 2011
Subject matter: permanent injunction
Bosch appealed, and the FC reversed, the USDC DE denial of a permanent injunction against Pylon. Bosch owns several patents related to “beam-type” windshield washer blades and a jury found that Pylon infringed the claims of two of Bosch’s patents. In denying the permanent injunction, the DC concluded Bosch failed to show irreparable harm because: 1) Bosch “fail[ed] to define a relevant market”; 2) the “existence of additional competitors”; and, 3) the “non-core nature of Bosch’s wiper blade business in relation to its business as a whole”. Under eBay (US 2006), a patentee seeking a permanent injunction must show: 1) irreparable injury; 2) available remedies are inadequate; 3) remedy in equity is warranted “considering the balance of hardships between the plaintiff and defendant”; and, 4) the permanent injunction would not disserve the public interest (compare to the prior rule that an injunction would be granted “absent a sound reason to deny” it and suit “likely to succeed” (Richardson, FC 1988)). A question the FC wrote was still unanswered after eBay is whether there is a “presumption of irreparable harm” (eBay (US 2006); Broadcom, FC 2008)) based on the patentee’s right to exclude under the Constitution (Acumed, FC 2008). The FC found that the DC erred by: 1) concluding that the presence of additional competitors “cuts against a finding of irreparable harm”; 2) relying on the “non-core” nature of Bosch’s wiper blade business (“equally capable of being irreparable as ones that affect more significant operations”); and, 3) concluding that Bosch had not shown that a remedy other than injunction would be sufficient (e.g., Bosch did not have a chance to determine whether Pylon could pay money damages (e.g., Canon, Inc., FC 2008)). The FC also concluded that the balance of the hardships favored Bosch (rejecting Pylon’s arguments in part because “[a] party cannot escape an injunction simply because it is smaller…or its primary product is an infringing one” (Windsurfing, FC 1986)) and that the public interest factor was neutral. Thus, the panel reversed the DC decision and ordered entry of the permanent injunction. Judge Bryson agreed that the DC order should not be affirmed because it was improperly analyzed under eBay, but disagreed that the “record compels the issuance of an injunction.” Instead, the dissent suggests the case should be remanded for proper analysis under eBay.