Like many other factual presumptions, it simply acts here as a procedural device which shifts the ultimate burden of production on the question of irreparable harm onto the alleged infringer. Roper Corp. v. Litton Sys., Inc., 757 F.2d 1266, 1272, 225 USPQ 345, 349 (Fed. Cir. 1985). Although a district court may properly deny a motion for preliminary injunction simply based on the movant's failure to establish a reasonable likelihood of success on the merits, a movant's right, upon establishing such a likelihood along with continuing infringement, to the benefit of a presumption of irreparable harm, makes the present case problematic.
The law applicable to the patent issues before us is therefore that of the Federal Circuit. See, e.g., Rite-Hite Corp. v. Kelley Co., Inc., 629 F. Supp. 1042, 1060 (E.D.Wis. 1986); Unique Concepts, Inc. v. Manuel, 231 U.S. P.Q. 268 (N.D.Ill. 1986) [Available on WESTLAW, DCTU database]. A plaintiff seeking a preliminary injunction for patent infringement must show: (1) a reasonable likelihood of success on the merits, i.e., a reasonable likelihood of showing that the patent is both valid and infringed; (2) that he does not have an adequate remedy at law and will suffer irreparable injury if the preliminary injunction does not issue; (3) that the injury to his patent rights if the injunction is not granted would outweigh the threatened harm the injunction would inflict on the defendant; and (4) that granting the injunction will not disserve the public interest. Roper Corp. v. Litton Systems, Inc., 757 F.2d 1266, 1269 (Fed. Cir. 1985). Defendants argue at length that 28 U.S.C. ยง 1295 was not intended to give the Federal Circuit power to "overrule" the Seventh Circuit on the standards for a preliminary injunction, and that therefore we should apply the law of the Seventh Circuit here. But the Federal Circuit has done no such thing.
As occurs all too frequently, both parties to this preliminary injunction case cast their arguments in terms applicable to judgments entered after trial; yet the issue is whether the district court abused its discretion in granting or denying a motion for a preliminary injunction after a hearing in which neither party was required to prove his case in full and in light of findings and conclusions not binding at trial. University of Texas v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 1834, 68 L.Ed.2d 175 (1981); Roper Corp. v. Litton Sys., Inc., 757 F.2d 1266, 1271, 225 USPQ 345, 348 (Fed. Cir. 1985) (substantive issues, such as validity and infringement, are not raised for final resolution by motion for preliminary injunction). Indeed, the district court in this case expressly recognized the possibility "of new evidence changing the court's impression of the facts."
The presumption of irreparable harm acts "as a procedural device which places the ultimate burden of production on the question of irreparable harm onto the alleged infringer." Reebok, 32 F.3d at 1556, 31 USPQ2d at 1784 (citing Roper Corp. v. Litton Sys., Inc., 757 F.2d 1266, 1272, 225 USPQ 345, 349 (Fed. Cir. 1985)); cf. Illinois Tool Works, 906 F.2d at 682, 15 USPQ2d at 1309 ("[A] presumption of irreparable harm to a patentee is, like all presumptions, rebuttable."). Because the district court afforded Polymer the benefit of the presumption, the burden properly was on Westmark to produce evidence sufficient to establish that Polymer would not be irreparably harmed by an erroneous denial of its motion for preliminary injunction.
4) the granting of the preliminary injunction will be in the public interest.Roper Corp. v. Litton Systems, Inc., 757 F.2d 1266, 1269 (Fed. Cir. 1985). Courts in general have recognized that where there is a reasonable likelihood that a patent is being infringed, there may be a special need for injunctive relief to stem any damage done to a plaintiff. See Augat, Inc. v. John Mezzalingua Assocs., Inc., 642 F. Supp. 506, 508 (N.D.N.Y. 1986) ("Unlike the more usual case in which courts inquire into whether money damages will adequately compensate an injured plaintiff, patents are afforded special protection."); Pittway v. Black Decker Corp., 667 F. Supp. 585, 593 (N.D.Ill. 1987) ("in patent cases protection usually requires immediate injunctive relief").
The Court must weigh four factors in determining the propriety of a preliminary injunction: (1) likelihood of success on the merits at trial; (2) irreparable harm if the injunction is not entered; (3) comparison of harm to Plaintiff if the injunction is denied with harm to Defendant if the injunction issues; and (4) public policy. Datascope Corp. v. Kontron Inc., 786 F.2d 398, 400 (Fed. Cir. 1986); Roper Corp. v. Litton Systems, Inc., 757 F.2d 1266, 1269, 1270-72 (Fed. Cir. 1985). In reviewing these factors, "[e]quity requires that no one element be dispositive, that each be weighed and measured against others and against the relief demanded."
The law is clear, a plaintiff is entitled to a preliminary injunction in a patent infringement suit when it demonstrates: (1) that there is a reasonable likelihood of success on the merits (reasonable likelihood that the patent is both valid and infringed); (2) that irreparable injury will result if the injunction is not granted; (3) that the threatened injury to the plaintiff if an injunction is not granted outweighs the threatened harm to the defendant if the injunction is granted; and (4) that the granting of the injunction will not disserve the public interest. Roper Corp. v. Litton Systems, Inc., 757 F.2d 1266, 1269-70 (Fed. Cir. 1985); Smith International Inc. v. Hughes Tool Co., 718 F.2d 1573, 1581 (Fed. Cir.), cert. denied, 464 U.S. 996, 104 S.Ct. 493, 78 L.Ed.2d 687 (1983). In deciding whether or not to grant a preliminary injunction, let us consider first whether there is a reasonable likelihood that Pittway can succeed on the merits.
(4) the public interest favors relief. Roper Corp. v. Litton Systems, Inc., 757 F.2d 1266, 1272 n. 5 (Fed. Cir. 1985); Datascope Corp. v. Kontron, Inc., 786 F.2d 398 (Fed. Cir. 1986). If a patentee makes a "clear showing" that his patent is valid and infringed, irreparable injury is presumed.
The presumption of validity of a patent is a procedural device that places the burden of going forward and the ultimate burden of persuasion at trial on one attacking the validity of a patent. See 35 U.S.C. ยง 282 (1988); Roper Corp. v. Litton Systems, Inc., 757 F.2d 1266, 1270, 225 USPQ 345, 347 (Fed. Cir. 1985). However, at the preliminary injunction stage, because of the extraordinary nature of the relief, the patentee carries the burden of showing likelihood of success on the merits with respect to the patent's validity, enforceability, and infringement.
This is substantially the same standard enunciated by this court. See, for example, Roper Corp. v. Litton Systems, Inc., 757 F.2d 1266, 1270-73, 225 USPQ 345, 347-50 (Fed. Cir. 1985), and Atlas Powder, 773 F.2d at 1231-34, 227 USPQ at 290-93. Patent Validity