Irreparable Harm No Longer Presumed in the Third Circuit for Lanham Act Plaintiffs

In a recent decision, the Court of Appeals for the Third Circuit eliminated the presumption of irreparable harm for Lanham Act plaintiffs seeking preliminary injunctive relief. In Ferring Pharms., Inc. v. Watson Pharms., Inc., No.13-2290 (Aug. 26, 2014), the Third Circuit extended the Supreme Court’s ruling in eBay Inc. v. MercExchange, L.L.C., 547 U.S. 403 (2006), and Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008), to claims brought under the Lanham Act. Under the Third Circuit’s decision, a plaintiff in a trademark infringement or false advertising lawsuit seeking a preliminary injunction in the Third Circuit now needs to prove that irreparable harm is “likely” to occur. Such harm is no longer presumed from a mere showing of likelihood of success on the merits. Instead, a plaintiff needs to present compelling evidence that its brands, products or services will likely be harmed should an injunction not issue. Continue reading this entry

Are Permanent Injunctions in Patent Cases Back in Style?

Two recent district court decisions out of the District of Delaware have again placed the spotlight on permanent injunctions in patent cases. Prior to 2006, there was a longstanding general rule that courts would issue permanent injunctions against patent infringement absent exceptional circumstances. That all changed with the Supreme Court’s landmark eBay decision, which overruled that general rule and replaced it with a four-factor test providing for equitable discretion. Since that time, permanent injunctions have somewhat fallen out of view in remedy considerations. For example, a number of courts have denied injunctions even when the plaintiff was a direct competitor of the defendant.[1]  The two recent district court decisions are a reminder that courts are willing to award permanent injunctions, especially in circumstances where the plaintiff practices its invention and the defendant is a direct market competitor. Continue reading this entry

NPEs Continue to Play Large Role in Patent Litigation

The annual patent litigation study recently released by PricewaterhouseCoopers LLP (PwC) sets forth some interesting trends in patent litigation, including that cases involving non-practicing entities (NPEs) continue to account for a large and increasing amount of patent cases. This may bolster recent calls by some to curb abusive patent litigation, which many largely attribute to certain types of cases involving NPEs. In 2013, cases involving NPEs accounted for the majority of new patent infringement cases, continued to be concentrated in a relatively small number of districts, and had higher damages awards even though damages overall are decreasing in patent litigation.

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New Guidance From the Federal Circuit on Motions to Stay Litigation Pending a PTAB Proceeding

In VirtualAgility Inc. v. Salesforce.com, Inc., No. 2014-1232 (July 10, 2014), the Federal Circuit issued its first opinion directed to the issue of when it is appropriate to grant a stay of a district court patent infringement lawsuit while a covered business method review proceeding (“CBM”) occurs. The case will have important ramifications for future cases in which motions to stay are filed for both CBMs and inter partes reviews (“IPRs”), including setting forth some principles that should be followed by attorneys and district courts in the analysis. We set forth some of those principles up front and discuss how they were specifically addressed by the Federal Circuit below:

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More Changes in Delaware: Judge Stark Revises Patent Case Procedures

Chief Judge Leonard P. Stark of the District of Delaware recently issued revised procedures for managing patent cases that are assigned to him. These revised procedures affect nearly every aspect of a case including scheduling, motions, discovery, claim construction, and trial. Indeed, many of these issues must now be addressed very early in the case. Practitioners who practice in the District of Delaware should familiarize themselves with these new procedures and plan their cases accordingly.

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