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Military

November 27, 2012

MILITARY, INC. (FORMERLY KNOWN AS REVISION EYEWEAR, INC.), AND REVISION MILITARY, LTD. (FORMERLY KNOWN AS REVISION EYEWEAR, LTD.), PLAINTIFFS-APPELLANTS,
v.
BALBOA MANUFACTURING COMPANY (DOING BUSINESS AS BOBSTER EYEWEAR), DEFENDANT-APPELLEE.



Appeal from the United States District Court for the District of Vermont in Case No. 11-CV-0149, Chief Judge Christina Reiss.

The opinion of the court was delivered by: Newman, Circuit Judge.

REVISION

Before NEWMAN, CLEVENGER, and LINN, Circuit Judges.

Revision Military, Inc., and Balboa Manufacturing Co. design, manufacture, and sell protective eyewear. Revision markets its ballistic protective eyewear primarily to mili- tary establishments and law enforcement agencies, and also to others who require eye protection, such as hunters and range shooters. Revision alleges that Balboa's new "Bravo" design protective goggles (also called "Bobster Bravo")

copied and infringes Revision's "Bullet Ant" goggles covered by U.S. Design Patents No. 537,098 (the '098 patent) and No. 620,039 (the '039 patent). After this infringement suit was filed Revision moved for a preliminary injunction, seeking to enjoin Balboa from making and selling the Bob- ster Bravo goggles while the litigation is pending. Revision stated that it is likely to succeed on the merits, that if the infringement is not enjoined it is likely to suffer irreparable harm, that the equities are balanced in its favor, and that public policy favors grant of a preliminary injunction on the merits and equities of this case.

The district court denied the preliminary injunction.*fn1 On Revision's appeal, we conclude that the district court erred in applying the Second Circuit's heightened standard of proof of likelihood of success on the merits, instead of the Federal Circuit standard for consideration of whether to impose such relief. We thus vacate the denial of the preliminary injunction, and remand for redetermination of the request on the appropriate standard.

I

The general criteria for grant of a preliminary injunction are stated by the Supreme Court as follows:

A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.

Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). Within this framework, the circuits have developed elaborations in response to particular circumstances. Thus the Second Circuit held, in Doninger v. Niehoff, 527 F.3d 41 (2d Cir. 2008), that the heightened standard of "clear" or "substantial" likelihood of success on the merits applies when a movant seeks "an injunction that will alter rather than maintain the status quo." Id. at 47. The district court held that the heightened standard applies here, because Balboa was already offering to sell the accused Bravo gog- gles to Revision's customers; the district court held that an injunction would alter Balboa's status. Thus the district court held that Revision must show a clear and substantial likelihood of success, and that a simple more-likely-than-not showing is insufficient.

With respect to the applicable standard, the Federal Circuit has explained that a preliminary injunction enjoin- ing patent infringement pursuant to 35 U.S.C. §283 "in- volves substantive matters unique to patent law and, therefore, is governed by the law of this court." Hybritech Inc. v. Abbott Labs., 849 F.2d 1446, 1451 n.12 (Fed. Cir. 1988). The Hybritech court explained that: "Because the issuance of an injunction pursuant to this section enjoins 'the violation of any right secured by a patent' . . . a prelimi- nary injunction of this type, although a procedural matter, involves substantive matters unique to patent law and, therefore, is governed by the law of this court." Id. See also, e.g., Reebok Int'l Ltd. v. J. Baker, Inc., 32 F.3d 1552, 1555 (Fed. Cir. 1994) ("An appeal from a denial of a preliminary injunction based on patent infringement involves substan- tive issues unique to patent law and, therefore, is governed by the law of this court."); Purdue Pharma L.P. v. Boe- hringer Ingelhiem GMBH, 237 F.3d 1359 (Fed. Cir. 2001) (on appeal from a district court in the Second Circuit, this court applied Federal Circuit, not Second Circuit, law in determining whether to grant a preliminary injunction). Although the court in Mikohn Gaming Corp. v. Acres Gam- ing, Inc., 165 F.3d 891 (Fed. Cir. 1998) drew on "the wealth of Ninth Circuit precedent" in reviewing the trial court's grant of a preliminary injunction, in that case the injunction related not to the merits of the infringement charge, but to statements to customers about the asserted infringement. See id. at 894 ("we give dominant effect to Federal Circuit precedent insofar as it reflects considerations specific to patent issues").

Substantive matters of patent infringement are unique to patent law, and thus the estimated likelihood of success in establishing infringement is governed by Federal Circuit law. Revision need not meet the Second Circuit's height- ened "clear or substantial likelihood" standard, but rather the Federal Circuit's standard of whether success is more likely than not. In turn, the weight of the likelihood may be considered as an equitable factor, along with issues of the position of the parties with respect to the status quo, in the ultimate balance of equities.

II

The law of design patent infringement is stated in Gor- ham Co. v. White, 81 U.S. 511 (1871), as whether "in the eye of an ordinary observer, giving such attention as a pur- chaser usually gives, [the] two designs are substantially the same." Id. at 528. In Egyptian Goddess, Inc. v. Swisa, Inc., 543 F.3d 665 (Fed. Cir. 2008) (en banc) the court confirmed that "in accordance with Gorham . . . we hold that the 'ordinary ...


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