In Koninklijke Philips N.V. v. Thales USA, Inc., 21-2106 (Fed. Cir. 7/13/2022), the Federal Circuit emphasized that likely means ... "likely."
Legal issue: Preliminary injunction, factor, “likely to suffer irreparable harm,” requirement to show the harm is likely.
A party seeking a preliminary injunction must establish that it is likely to suffer irreparable harm without an injunction. Winter, 555 U.S. at 22. The mere possibility or speculation of harm is insufficient. *** The district court did not clearly err in determining that Thales’ evidence of harm was conclusory and that it failed to meet its burden of establishing likely irreparable harm. Thales did not present any evidence that it lost customers, had customers delay purchases, or struggled to acquire new business because of the ongoing ITC proceedings. Oral Arg. at 3:24–3:52.1 Instead, it presented affidavits stating only that the threat of an ITC exclusion order caused several customers to ‘voice concerns’ and express doubt regarding Thales’ ability to deliver products. J.A. 857–59, 861–66. And during oral argument, it characterized its alleged harm as living under the “cloud on the business” of a potential exclusion order and the potential loss of business that may occur if it loses at the ITC. Oral Arg. at 15:22–15:31. This type of speculative harm does not justify the rare and extraordinary relief of a preliminary injunction. See Takeda Pharms, 967 F.3d at 1349 & n.8; cf. Celsis In Vitro, Inc. v. CellzDirect, Inc., 664 F.3d 922, 930 (Fed. Cir. 2012) (affirming district court’s determination of irreparable harm where movant demonstrated change in pricing behavior and supported testimony with specific financial records). Based on the record, the district court did not clearly err in finding that there was no evidence of likely irreparable harm and thus did not abuse its discretion in holding that Thales was not entitled to a preliminary injunction. [Koninklijke Philips N.V. v. Thales USA, Inc., 21-2106 (Fed. Cir. 7/13/2022).]
Best regards, Rick Neifeld, Ph.D., Patent Attorney
Neifeld IP Law PLLC
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