Irreparable Harm

Irreparable harm lies at the foundation of equitable considerations.

[T]he issues of irreparable harm and adequacy of remedies at law are inextricably intertwined.

ActiveVideo Networks v. Verizon Communications, 694 F. 3d 1312, 1337 (Fed. Cir. 2012).

Irreparable harm considers both future and past events.

Although injunctions are tools for prospective relief designed to alleviate future harm, by its terms the first eBay factor looks, in part, at what has already occurred.

i4i Ltd. Partnership v. Microsoft Corp., 598 F. 3d 831, 862 (Fed. Cir. 2010).

There are no rules of thumb that would preclude a showing of irreparable harm.

[T]he Supreme Court cautioned that traditional equitable principles do not permit such broad classifications as presuming that a patentee cannot establish irreparable harm based on a patentee's willingness to license its patents or its lack of commercial activity in practicing the patents.

Broadcom Corp. v. Qualcomm Inc., 543 F. 3d 683, 703 (Fed. Cir. 2008).

A number of factors may weigh on the issue of irreparable harm including:

  1. in favor, unreasonable delay in bringing its suit;

    Unreasonable delay in bringing suit may also be relevant to a patentee's claim that continued infringement will cause it irreparable injury.

    SCA Hygiene Prods. V. First Quality Baby prods., 807 F. 3d 1311, 1331 (Fed. Cir. 2015).

  2. in favor or against, the nature of competition between parties;

  3. in favor, loss of market share;

  4. in favor, the infringer’s inability to pay damages;

    Bosch's evidence of: (1) the parties' direct competition; (2) loss in market share and access to potential customers resulting from Pylon's introduction of infringing beam blades; and (3) Pylon's lack of financial wherewithal to satisfy a judgment.

    Robert Bosch LLC v. Pylon Mfg. Corp., 659 F. 3d 1142, 1151 (Fed. Cir. 2011).

  5. In favor, “sticky” customers relationships;

    Emulex and Broadcom were competitors in a "design wins" market, which is fundamentally different from the market in Apple. […] this market has a limited set of customers […] And once a supplier is chosen to meet the needs of a new product line, the supplier's component is essentially designed into the OEM product for its life cycle.

    Broadcom Corp. v. Emulex Corp., 732 F. 3d 1325, 1337 (Fed. Cir. 2013).

  6. In favor, a record of aggressively enforcing the patent-in-suit;

    While the existence of a two-player market may well serve as a substantial ground for granting an injunction — e.g., because it creates an inference that an infringing sale amounts to a lost sale for the patentee — the converse is not automatically true, especially where, as here, it is undisputed that the patentee has sought to enforce its rights against other infringers in the market.

    Robert Bosch LLC v. Pylon Mfg. Corp., 659 F. 3d 1142, 1151 (Fed. Cir. 2011).

The case for irreparable harm may be especially strong when patentee and infringer compete head on as the only two players in a marketplace.

Where two companies are in competition against one another, the patentee suffers the harm — often irreparable — of being forced to compete against products that incorporate and infringe its own patented inventions.

Douglas Dynamics, LLC v. Buyers Products Co., 717 F. 3d 1336, 1345 (Fed. Cir. 2013).

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