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 the Judge found that this actually cut against plaintiffs:
An injury cannot be “irreparable” if money would be an adequate remedy, and that is exactly what is suggested by Plaintiffs’ offering to license their patents to Defendant and other competitors.
Finally, the Judge faulted plaintiffs' lack of evidence for its allegation that defendants would be unable to satisfy a money judgment:
[T]he Court has received no evidence of Plaintiffs’ annual or lost sales, and no evidence of the Defendant’s ability to pay any damage award. Although Plaintiffs assert that “[a]n attorney for Defendant explained Earbuds® has no resources and cannot afford / pay any license offered,” that bare assertion is not enough evidence to persuade this Court.
The Court also noted that plaintiffs had waited eight months to file suit, and a further three months to file a PI motion, undercutting their claims of irreparable harm. In addition, "Plaintiff also agreed to a four month period for discovery and briefing of the motion . . . , yet failed to supplement its papers with evidence supporting its various arguments."
With respect to likelihood of success on the merits, the Judge found plaintiffs' submission similarly lacking in support (and undermined by the fact that defendant had provided a declaration evidencing non-infringement):
Plaintiffs have provided no expert (or other) testimony and no authenticated documents to demonstrate infringement, instead presenting claim charts to the Court. The claim charts contain argument about claim constructions (with hardly any citation to intrinsic evidence) as well as arguments that each claim element is met by the accused product (again without citation to specific evidence or quoting identified documents). The claim charts are, in other words, long on argument but short on evidence.
The Court did not address the remaining PI factors.
Judge Noreika also granted in part the defendant's motion to dismiss for lack of standing, because the complaint alleged that all right, title, and interest for two patents-in-suit had been assigned to one of the plaintiffs, leaving the other with "no constitutional or statutory standing with respect to those patents."
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