Ouch. In Nivagen Pharmaceuticals, Inc. v. Amneal Pharmaceuticals Inc., C.A. No. 24-846-GBW (D. Del.), the patentee plaintiff filed suit to stop a competitor from launching a drug that it says would infringe its patents, after the competitor received FDA approval.
(Because this was not an ANDA, there was no automatic stay.)
The plaintiff filed a TRO motion on August 13, shortly after its complaint. For at least two of the …
Judge Williams ruled on a preliminary judgment motion yesterday in Cirba Inc. v. VMWare, Inc., C.A. No. 19-742-GBW (D. Del. Mar. 9, 2023). In that case, the plaintiff had originally gone to trial back in 2020, and won a $237 million jury verdict, plus a jury finding of willful infringement. Id., D.I. 550 at 6.
The Court previously vacated that win, however, because it turns out that one of the plaintiffs, Cirba Inc., had assigned all rights in the patent at issue to another entity, Cirba IP. The Court held that the re-assignment meant that Cirba Inc. lacked standing such that it should not have been part of the trial, and that including Cirba Inc. in the trial impacted the arguments enough to warrant a new trial. Id. at D.I. 752, 946.
Yesterday, the Court addressed plaintiff's motion for a preliminary injunction pending the new trial. It looks like it was an easy decision for the Court, because plaintiff relied entirely on the previous trial win to show a likelihood of success—despite the fact that the Court had granted a new trial:
Rather than brief why it will likely prove infringement, Cirba summarily states that it "is likely to succeed on the merits of its patent infringement claim because it already has," referring to the vacated verdict from the first trial. . . . This Court, however, granted VMware's motion for a new trial. . . . "[I]t is quite clear, that the order granting the new trial has the effect of vacating the former judgment, and to render it null and void, and the parties are left in the same situation as if no trial had ever taken place in the cause." United States v. Ayres, 76 U.S. 608, 610 (1869). Thus, Cirba has made no "clear showing" that it will likely prove infringement.
It's not hard to see what plaintiff was thinking here. On the surface, the Court ...
Judge Andrews issued an opinion earlier this month regarding a permanent injunction in Wonderland Switzerland AG v. Evenflo Company, Inc., C.A. No. 18-1990-RGA (D. Del. July 5, 2022). Plaintiff in that case prevailed at a four-day bench trial in 2021, with a damages award of $343,680 (they sought $845,528, according to the draft PTO).
Plaintiff now moved for a preliminary injunction. The Court had held after trial, as part of its Georgia Pacific reasonable royalty analysis, that the parties were "direct competitors":
First, I previously held that "the parties are direct competitors in the industry of the patented invention." . . . Specifically, the parties do not dispute that Graco and Defendant directly compete in the car seat market. (See D.I. 195 at 2 (Defendant agreeing, " There is no dispute that Evenflo directly competes with Graco, Wonderland's customer in a large market for all-in-one car seats.")). Additionally, Plaintiff is the exclusive manufacturer of car seats sold by Graco in the United States. . . . Thus, if Graco loses a sale of a car seat, Plaintiff also loses a sale.
Judge Andrews rejected an apparent attempt to backtrack and argue that the parties were not competitors, in part because ...
Judge Andrews resolved a request for a permanent injunction in a patent case today, in a way I haven't seen before.
In Sunoco Partners Marketing & Terminals L.P. v. Powder Springs Logistics, LLC, C.A. No. 17-1390-RGA (D. Del.), the plaintiff won an infringement jury verdict in a trial last month.
The patents involve mixing gasoline with butane automatically, rather than through a process that involves manual intervention. The accused infringement involves the mixing of gasoline and butane on a pipeline.
Plaintiff immediately moved for a permanent injunction, and sought a hearing on the injunction on December 22 or 23, just before the holidays. The patent relevant to the permanent injunction expires in April …
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 …
Here's one I haven't seen before. In EIS, Inc. v. Intihealth GER GmbH, C.A. No. 19-1227-LPS (D. Del.), the counterclaim-defendant filed a motion for a TRO to force the patentee defendant to withdraw infringement notices it provided to Amazon.com regarding the counterclaim-defendant's products, and to force them to request that Amazon restore the product's ranking and reviews on the site:
Plaintiff EIS Inc. (“EIS”) respectfully moves the Court to grant a temporary restraining order to enjoin Defendants, requiring them to withdraw their patent infringement notice(s) to Amazon that reference EIS’s “Satisfyer” products, and ordering that the withdrawal shall request that Amazon restore EIS’s product listings with the same rankings and customer reviews …
Judge Stark issued an interesting opinion last week, deciding not to grant a permanent injunction. Although these requests are denied more often than not, this particular opinion was interesting because it rested, in part, on the plaintiff's conduct in failing to pursue third-party (alleged) infringers.
When it came time to rule on the permanent injunction issue, the Court had already determined that the parties in AO Smith Corp. v. Bradford White Corp., C.A. No. 18-412-LPS, D.I. 244 (D. Del. July 9, 2021) were direct competitors. AO Smith, D.I. 220 at 13 (D. Del Mar. 31, 2020). The relevant market also had two other substantial players not involved in the suit.
Unfortunately for the …
