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.
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 ...