We wrote last week about an accused infringer's attempt to secure a TRO to force the patentee to undo their efforts to get the infringer's product de-listed from Amazon.
Judge Stark swiftly ruled on the TRO, ultimately denying it for failure to show a likelihood of success on the merits:
ORAL ORDER: Having considered all the briefing and other relevant materials . . . and having heard short oral argument yesterday, IT IS HEREBY ORDERED that [accused infringer] EIS's motion for a temporary restraining order and preliminary injunction (D.I. 139) is DENIED. EIS has not shown a likelihood of success on the merits. EIS's noninfringement argument (D.I. 140 at 7−9) turns on construction of the claim term "a sole opening of the chamber to an exterior of the stimulation device" ('220 patent at 15:5−6), but on the limited briefing the Court has received, the Court cannot conclude at this stage that EIS is likely to prevail on this claim construction [or inequitable conduct] dispute[s]. . . . Because EIS has not shown a likelihood of success on the merits, its motion must be denied, and the Court need not consider the other factors for injunctive relief. See generally Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).
Interestingly, the Court went out of its way to point out that they balance of harms would otherwise "strongly" favor relief, as would the public interest—but those factors cannot outweigh a lack of a likelihood of success on the merits:
Nevertheless, as the Court indicated during the hearing yesterday, it appears (on the limited record) that EIS is being irreparably harmed by the timing of Defendants' successful efforts to remove one of EIS's accused products from Amazon, the balance of harms appears to strongly favor preliminary injunctive relief, and the public interest does as well. The Court is further concerned that [patentee] Defendants' characterizations of their interactions with Amazon, and their representations about Amazon's purported findings, are not supported by the record. Nevertheless, applying the proper legal standards to the record before the Court, it is evident that EIS has failed to meet its burden to obtain its requested extraordinary injunctive relief.
It looks like, under the standards, the accused infringer will have to suffer through a ban on sales of its products on Amazon through at least the summary judgment phase, and probably through trial in May 2023 (assuming the parties don't settle before then).
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