A Blog About Intellectual Property Litigation and the District of Delaware


Entries for tag: preliminary-injunction

Preliminary injunction motions are—in most cases—filed before substantial discovery has occurred. Nonetheless, a plaintiff seeking a preliminary injunction must support its motion (including both its assertion that it is likely to succeed on the merits an its assertion that it will be irreparably harmed absent an injunction) with evidence.

In Vertigo Media, Inc. v. Earbuds Inc., C.A. No. 21-120-MN, a patent case involving mobile phone apps that permit users "to send music that is simultaneously synchronized with the audience’s individual music streaming platform (Spotify, Apple Music, etc.) and played from audience members’ devices," Judge Noreika recently denied a preliminary injunction motion because plaintiffs had provided "scant" evidence of irreparable harm, and had likewise failed to substantiate their patent infringement arguments.

Mobile music
Samsung Galaxy S7 phone mounted to a car via CD slot., Michael Jin, Unsplash

The Judge first rejected plaintiffs' argument that they had shown irreparable harm as a result of price erosion:

Plaintiffs have offered no concrete evidence of price erosion, let alone evidence that damage caused by any such price erosion could not be quantified. Instead, Plaintiffs allege “complete price erosion” because Defendant markets its products for free. But Plaintiffs do not offer any evidence suggesting that they were planning to offer their product as a paid service or that the price has eroded at all.

Plaintiffs did present evidence that they had unsuccessfully contacted competitors with offers to license rights to their technology, but ...

Oral argument is never guaranteed in D. Del. This means you need to be careful in paring back your briefs—anything that ends up on the cutting room floor might never see the light of day.

Case in point: On Friday, Judge Stark issued an order denying a motion for a preliminary injunction in a competitor case (seeking to require the defendant to withdraw several pending IPR petitions). Both sides requested oral argument, and the plaintiff requested an expedited hearing.

Instead of holding argument, Judge Stark summarily denied the motion on the papers. In a single paragraph, he held that the plaintiff "failed to persuade the Court" on any of the preliminary injunction factors, and noted that a full …

david-clode-PMyak6AHT1Y-unsplash.jpg
David Clode, Unsplash

In Reputation.com, Inc. v. Birdeye, Inc., C.A. No. 21-129-LPS (D. Del.), the plaintiff moved for a preliminary injunction.

Judge Stark referred the PI motion to Judge Burke, who held an initial status conference and set a truncated schedule for PI discovery. The scheduling order set deadlines for PI discovery and supplemental briefing to be completed within 4 months.

Shortly after the PI motion, defendant moved to dismiss on § 101 grounds; in response, the plaintiff amended the complaint.

After the amendment, the Court issued an oral order sua sponte denying the motion to dismiss as moot—a common practice among some D. Del. judges (these orders helpfully make explicit that the pending motion …

Just a regular microphone
Just a regular microphone Santtu Perkiö, Unsplash

In a design patent dispute between Shure and ClearOne over microphone arrays, Magistrate Judge Burke recently issued an R&R recommending denial of a preliminary injunction.

The denial itself isn't surprising—in D. Del., these motions are denied far more often than not. But the R&R sheds some helpful light on how you can make your motions stronger.

First, make sure your theme matches your facts. Although the plaintiffs claimed that the defendant's sales were "surging," Judge Burke found the opposite. The exact sales numbers are redacted, but they were enough for Judge Burke to conclude that "as of July 2020, it is Shure’s sales that were surging; ClearOne’s were not." You can't …