"An abuse of discretion may be established by showing that the court made a clear error of judgment in weighing relevant factors or exercised its discretion based upon an error of law or clearly erroneous factual findings." Koninklijke Philips N.V. v. Thales DIS AIS USA LLC, 39 F.4th 1377, 1379 (Fed. Cir. 2022) (quoting Novo Nordisk of N. Am., Inc. v. Genentech, Inc., 77 F.3d 1364, 1367 (Fed. Cir. 1996)); see Kos Pharms., 379 F.3d at 708.
The party seeking a preliminary injunction must prove it likely would be irreparably harmed absent an injunction. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); Koninklijke Philips N.V. v. Thales DIS AIS USA LLC, 39 F.4th 1377, 1380 (Fed. Cir. 2022). Well Cell failed to make that showing, and the district court clearly erred in finding otherwise.
Filing 38 at 4-5. Lite-Netics relies on the decision of the Federal Circuit Court of Appeals in Koninklijke Philips N.V. v. Thales DIS AIS USA LLC, 39 F.4th 1377 (Fed. Cir. 2022). In Philips, the Federal Circuit acknowledged that "[a] party seeking a preliminary injunction must establish that it is likely to suffer irreparable harm without an injunction.
We review a preliminary-injunction order under the law of the regional circuit. Koninklijke Philips N.V. v. Thales DIS AIS USA LLC , 39 F.4th 1377, 1379 (Fed. Cir. 2022). The First Circuit reviews preliminary-injunction decisions for abuse of discretion; it reviews underlying questions of law de novo and questions of fact for clear error.
Winter v. Nat. Res. Def. Council, Inc. , 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) (citations omitted). In reviewing the grant or denial of a preliminary injunction, "the estimated likelihood of success in establishing infringement is governed by Federal Circuit law," Revision Mil., Inc. v. Balboa Mfg. Co. , 700 F.3d 524, 526 (Fed. Cir. 2012), while the other factors are governed by the law of the regional circuit, see Koninklijke Philips N.V. v. Thales DIS AIS USA LLC , 39 F.4th 1377, 1379 (Fed. Cir. 2022). Design patent infringement occurs when a party, "without license of the owner, (1) applies the patented design, or any colorable imitation thereof, to any article of manufacture for the purpose of sale, or (2) sells or exposes for sale any article of manufacture to which such design or colorable imitation has been applied."
"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. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008) (citations omitted). In reviewing the grant or denial of a preliminary injunction, "the estimated likelihood of success in establishing infringement is governed by Federal Circuit law," Revision Mil., Inc. v. Balboa Mfg. Co., 700 F.3d 524, 526 (Fed. Cir. 2012), while the other factors are governed by the law of the regional circuit, see Koninklijke Philips N.V. v. Thales DIS AIS USA LLC, 39 F.4th 1377, 1379 (Fed. Cir. 2022).
Discovery on lost customers and price erosion is relevant to the irreparable harm analysis. See Koninklijke Philips N V. v. Thales DIS AIS USA LLC, 39 F.4th 1377,1380 (Fed. Cir. 2022) (affirming denial of preliminary injunction where the movant did not present any evidence that it lost customers). Moreover, Defendants' response to the preliminary injunction motion expressly addresses the issue of lost customers, bringing the issue within the scope of the parties' stipulation on preliminary injunction discovery.
[] The mere possibility or speculation of harm is insufficient." Koninklijke Philips N. V. v. Thales DISAIS USA LLC, 39 F.4th 1377, 1380 (Fed. Cir. 2022) (citations omitted) (emphasis in original).
Seventh Circuit law governs the other factors. See Koninklijke Philips N.V. v. Thales DIS AIS USA LLC, 39 F.4th 1377, 1379 (Fed. Cir. 2022).