APPLE INC., A CALIFORNIA CORPORATION, Plaintiff-Appellant v. SAMSUNG ELECTRONICS CO., LTD., A KOREAN CORPORATION, SAMSUNG ELECTRONICS AMERICA, INC., A NEW YORK CORPORATION, SAMSUNG TELECOMMUNICATIONS AMERICA, LLC, A DELAWARE LIMITED LIABILITY COMPANY, Defendants-Appellees
2014-1802
United States Court of Appeals for the Federal Circuit
September 17, 2015
Appeals from the United States District Court for the Northern District of California in No. 5:12-cv-00630-LHK, Judge Lucy H. Koh.
KATHLEEN M. SULLIVAN, Quinn Emanuel Urquhart & Sullivan, LLP, New York, NY, argued for defendant-appellees. Also represented by WILLIAM ADAMS; BRIAN COSMO CANNON, VICTORIA FISHMAN MAROULIS, KEVIN P.B. JOHNSON, Redwood Shores, CA; SCOTT L. WATSON, MICHAEL THOMAS ZELLER, JOHN B. QUINN, Los Angeles, CA; KEVIN ALEXANDER SMITH, San Francisco, CA.
MIKE MCKOOL, McKool Smith, P.C., Dallas TX, for amicus curiae Ericsson Inc. Also represented by THEODORE STEVENSON, III; JOHN BRUCE CAMPBELL, JOEL LANCE THOLLANDER, Austin, TX.
JOHN D. HAYNES, Alston & Bird LLP, Atlanta, GA, for amici curiae Nokia Corporation, Nokia USA, Inc. Also represented by PATRICK J. FLINN; RYAN W. KOPPELMAN, East Palo, CA.
MATTHEW SCHRUERS, Computer & Communications Industry Association, Washington, DC, for amicus curiae Computer & Communications Industry Association.
JOSEPH CARL CECERE, JR., Cecere PC, Dallas, TX, for amicus curiae The National Black Chamber of Commerce.
KEVIN MCGANN, White & Case LLP, New York, NY, for amici curiae Google Inc., HTC Corporation, HTC America, Inc., LG Electronics, Inc., Rackspace Hosting, Inc., Red Hat, Inc., SAP America, Inc. Also represented by CHRISTOPHER J. GLANCY; WARREN S. HEIT, Palo Alto, CA.
Before PROST, Chief Judge, MOORE, and REYNA, Circuit Judges.
Concurring opinion filed by Circuit Judge REYNA.
Dissenting opinion filed by Chief Judge PROST.
MOORE, Circuit Judge.
Apple Inc. appeals from an order of the district court denying Apple’s request for a permanent injunction against Samsung Electronics Company, Ltd.; Samsung Electronics America, Inc.; and Samsung Telecommunications America, LLC (collectively, “Samsung“). We vacate and remand for further proceedings.
BACKGROUND
In 2007, Apple introduced the iPhone, revolutionizing the cell phone market. To develop the iPhone, Apple invested billions of dollars over several years—investment that came with significant risk. J.A. 10424–26, 10585–98. Indeed, Apple executives referred to the iPhone as a “you bet your company” product because of the uncertainty associated with launching an untested product line in a new market. J.A. 10425–26, 10451–52.
To protect the inventions developed as a result of this investment, Apple applied for and received patents covering much of the innovative technology incorporated into the iPhone. Apple’s patents are numerous and include U.S. Patent Nos.
The iPhone was undisputedly successful. After its release, reviewers praised a number of features on the iPhone, including its multitouch screen, software, ease of use, and overall user experience. Trial Transcript Day 2 at 436–40, Apple, Inc. v. Samsung Elecs. Co., No. 12-CV-00630-LHK (N.D. Cal. 2014) (No. 1622). Other companies followed. Samsung, in particular, developed competing smartphones. Internal Samsung documents show that Samsung “paid close attention to, and tried to incorporate” some of Apple’s patented technology, which was “indicative of copying by Samsung.” Apple, Inc. v. Samsung Elecs. Co., No. 12-CV-00630-LHK, 2014 WL 7496140, at *14 (N.D. Cal. Aug. 27, 2014) (”Injunction Order“). Today, Apple and Samsung are fierce competitors in the smartphone and tablet market. Id. at *8.
The instant appeal springs from a suit filed by Apple against Samsung in February 2012 alleging infringement of five patents directed to smartphone and tablet interfaces, including the ’721 patent, the ’647 patent, and the ’172 patent. The district court held on summary judgment that Samsung infringed the ’172 patent. The case proceeded to trial, and a jury found that nine Samsung products infringed one or both of Apple’s ’647 and ’721 patents. The jury awarded Apple a total of $119,625,000 for Samsung’s infringement of the three patents.
Despite the narrowness of Apple’s proposed injunction, the district court denied Apple’s motion, finding that Apple had not shown that it would suffer irreparable harm without an injunction. Id. at *23. Predicated entirely on this finding, the district court reasoned that Apple could not establish that monetary damages were inadequate. Id. at *19. Although the district court found that the public interest favored Apple’s request and that the narrowness of Apple’s proposed injunction tilted the balance of hardships in Apple’s favor, it determined that these factors did not overcome Apple’s lack of irreparable harm. Id. at *23. Apple appealed. We have jurisdiction under
DISCUSSION
The Patent Act provides a patentee with the “right to exclude others from making, using, offering for sale, or selling the [patented] invention.”
A party seeking a permanent injunction must demonstrate:
(1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.
Id. at 391 (majority opinion). The decision to award or deny permanent injunctive relief lies within the equitable discretion of the district court; these traditional equitable principles do not permit the adoption of “certain expansive principles suggesting that injunctive relief could not issue in a broad swath of cases.” Id. at 391, 393. The district court’s decision is reviewable for abuse of discretion. Id. at 391. A court abuses its discretion when it “ma[kes] a clear error of judgment in weighing relevant factors or exercise[s] its discretion based upon an error of law or clearly erroneous factual findings.” Innogenetics, N.V. v. Abbott Labs., 512 F.3d 1363, 1379 (Fed. Cir. 2008). We review the district court’s conclusion as to each eBay factor for abuse of discretion and its underlying factual
A. Irreparable Harm
To satisfy the first eBay factor, the patentee must show that it is irreparably harmed by the infringement. This requires proof that a “causal nexus relates the alleged harm to the alleged infringement.” Apple Inc. v. Samsung Elecs. Co., 695 F.3d 1370, 1374 (Fed. Cir. 2012) (”Apple II“). This just means that there must be proof that the infringement causes the harm.
Apple argued to the district court that it was irreparably harmed by Samsung’s infringement due to damage to its reputation as an innovator, lost market share, and lost downstream sales. Injunction Order at *6, *11. The district court rejected Apple’s arguments regarding irreparable harm and found that Apple had not shown that a causal nexus connected Samsung’s infringement to these alleged injuries. Id. at *8–9, *11–16. On appeal, Apple argues that the district court erred in a number of ways with respect to this eBay factor. First, Apple argues that the court should not have required Apple to prove that a causal nexus linked Samsung’s infringement to Apple’s harms because Apple’s proposed injunction was limited to the infringing features alone, not the products as a whole. Apple also argues that the court erred when it found that Apple did not suffer irreparable harm stemming from its sales-based losses and from harm to its reputation as an innovator due to Samsung’s infringement. We address each of Apple’s arguments in turn.
1. Causal Nexus Requirement
Apple claims that “[t]he purpose and substance of the causal nexus requirement are necessarily satisfied in this circumstance because there is no risk that Apple might be ‘leveraging its patent for competitive gain beyond that which the inventive contribution and value of the patent
Apple misunderstands the purpose of the causal nexus requirement. Although we stated in Apple II that the causal nexus requirement “informs whether the patentee’s allegations of irreparable harm are pertinent to the injunctive relief analysis, or whether the patentee seeks to leverage its patent for competitive gain beyond that which the inventive contribution and value of the patent warrant,” this statement was incomplete. Apple II, 695 F.3d at 1375. The causal nexus requirement ensures that an injunction is only entered against a defendant on account of a harm resulting from the defendant’s wrongful conduct, not some other reason. For example, it ensures that an injunction is not entered on account of “irreparable harm caused by otherwise lawful competition.” Apple III, 735 F.3d at 1361. Whether a patentee’s irreparable harm stems from infringement of its patents is entirely independent of the scope of the proposed injunction.
And while, in the past, we have only had occasion to require proof of causal nexus for product-based injunctions, we have also rejected Apple’s argument that narrowing the proposed injunction can eliminate the causal nexus requirement. In Apple III, we explained that, while narrowing a proposed injunction by delaying it so that the infringer could design around the infringing features would make it “more likely to prevent only infringing
To be sure, the scope of an injunction plays a role in determining whether that injunction is awarded. For example, it is crucial when considering the final two factors of the eBay test. Here, the district court did not err by requiring Apple to satisfy the causal nexus requirement to show irreparable harm.
2. Sales-Based Harm
Apple argues that the district court erred in finding that Apple did not suffer irreparable harm due to lost market share and lost downstream sales stemming from Samsung’s infringement. The district court noted that it was undisputed that Apple lost market share and downstream sales to Samsung. Injunction Order at *11. It was also undisputed that “Apple and Samsung compete directly in the market for smartphones and tablets” and that “this competition affects [Apple’s] downstream sales because of so-called ‘ecosystem’ effects, where one company’s customers will continue to buy that company’s products and recommend them to others.” Id. Moreover, the court wrote that the record established that “the competition between Apple and Samsung was ‘fierce’” and that “Apple was Samsung’s ‘largest smartphone competitor’ in
Despite these findings, the district court found that Apple failed to demonstrate irreparable harm due to lost sales because it failed to show a causal nexus between the infringement and the lost sales. That is, according to the district court, Apple did not show that the infringing features “drive consumer demand for Samsung’s infringing products.” Id. at *13. Here, the district court erred.
When a patentee alleges it suffered irreparable harm stemming from lost sales solely due to a competitor’s infringement, a finding that the competitor’s infringing features drive consumer demand for its products satisfies the causal nexus inquiry. In that case, the entirety of the patentee’s alleged harm weighs in favor of injunctive relief. Such a showing may, however, be nearly impossible from an evidentiary standpoint when the accused devices have thousands of features, and thus thousands of other potential causes that must be ruled out. Nor does the causal nexus requirement demand such a showing. Instead, it is a flexible analysis, as befits the discretionary nature of the four-factor test for injunctive relief. We have explained that proving a causal nexus requires the patentee to show “some connection” between the patented features and the demand for the infringing products.
The right to exclude competitors from using one’s property rights is important. And the right to maintain exclusivity—a hallmark and crucial guarantee of patent rights deriving from the Constitution itself—is likewise important. “Exclusivity is closely related to the fundamental nature of patents as property rights.” Douglas Dynamics, 717 F.3d at 1345. And the need to protect this exclusivity would certainly be at its highest when the infringer is one’s fiercest competitor. Essentially barring entire industries of patentees—like Apple and other innovators of many-featured products—from taking advantage of these fundamental rights is in direct contravention of the Supreme Court’s approach in eBay. 547 U.S. at 393 (“[E]xpansive principles suggesting that injunctive relief could not issue in a broad swath of cases . . . cannot be squared with the principles of equity adopted by Congress.“).
The district court thus erred when it required Apple to prove that the infringing features were the exclusive or predominant reason why consumers bought Samsung’s products to find irreparable harm. See Apple III, 735 F.3d at 1364 (explaining that “[c]onsumer preferences are too complex—and the principles of equity are too flexible” for a patentee to have to show that patented features are the “one and only reason for consumer demand“). Instead, the district court should have considered whether there is “some connection” between the patented features and the demand for Samsung’s products. Id. That is, the district court should have required Apple to show that the patented features impact consumers’ decisions to purchase the accused devices. Id. (explaining that causal nexus can be shown with evidence that “a patented feature is one of several features that cause consumers to make their purchasing decisions“).
While the evidence that Samsung’s employees believed it to be important to incorporate the patented feature into Samsung’s products is certainly relevant to the issue of nexus between the patent and market harm, it is not dispositive. That is because the relevant inquiry focuses on the objective reasons as to why the patentee lost sales, not on the infringer’s subjective beliefs as to why it gained them (or would be likely to gain them).
The district court was correct that evidence of copying does not, by itself, establish a causal nexus. But that does not make the evidence wholly irrelevant. Here, too, we must avoid categorical rules. Where the precise question is about consumer preferences and buying choices, the strength and weight to be given to such evidence is to be determined on a case-by-case basis based on what the evidence indicates. Sometimes this evidence will have little or no probative value, for example, if the record contains evidence that the infringer’s belief may be at odds with consumer preferences. But here, Apple’s evidence of copying established a further link between Apple’s and Samsung’s subjective beliefs and consumers’ perceptions, thereby strengthening a causal nexus and irreparable harm to Apple. The dissent criticizes Apple’s evidence of copying as “lack[ing] any connection to the
Furthermore, this record contained Dr. John Hauser’s conjoint study, which established that consumers would not have purchased a Samsung phone if it lacked the patented features, that they valued these features, and that they were willing to pay considerably more for a phone that contained these features. Injunction Order at *12; see also J.A. 20491–98 (survey results showing that many respondents would not purchase a Samsung phone without the infringing features); J.A. 20539 (results showing that respondents were willing to pay more for devices that included the infringing features). Based on the results, Dr. Hauser concluded that “[t]he features that
In short, the record establishes that the features claimed in the ’721, ’647, and ’172 patents were important to product sales and that customers sought these features in the phones they purchased. While this evidence of irreparable harm is not as strong as proof that customers buy the infringing products only because of these particular features, it is still evidence of causal nexus for lost sales and thus irreparable harm. Apple loses sales because Samsung products contain Apple’s patented features. The district court therefore erred as a matter of law when it required Apple to show that the infringing features were the reason why consumers purchased the accused products. Apple does not need to establish that these features are the reason customers bought Samsung phones instead of Apple phones—it is enough that Apple has shown that these features were related to infringement and were important to customers when they were examining their phone choices. On this record, applying the correct legal standard for irreparable harm, Apple has established irreparable harm. The strength of its evidence of irreparable harm goes to this factor’s weight when assessing the propriety of the injunction. Apple established that customers wanted, preferred, and would pay extra for these features. Apple established that Samsung believed these features were important and copied them. The evidence establishes that Samsung’s
B. Inadequate Remedy at Law
The second eBay factor is whether “remedies available at law, such as monetary damages, are inadequate to compensate” for the irreparable harm suffered by the patentee. 547 U.S. at 391.
The district court found that Apple’s sales-based losses were difficult to quantify. Injunction Order at *18. In support, the district court cited testimony by Mr. Phil Schiller, an Apple marketing executive; testimony by Apple’s damages expert; and its own past findings on the subject in the context of the Apple-Samsung litigation. Id. at *17. We agree with the district court’s analysis. Sales lost by Apple to Samsung are difficult to quantify due to the “ecosystem effect“—that is, the effect the sale of a single product can have on downstream sales of accessories, computers, software applications, and future smartphones and tablets. Id.; see also J.A. 10449–50. In addition to the downstream sales to the individual customer, Mr. Schiller testified that individual customers have a “network effect,” by which they advertise Apple’s product to their friends, family, and colleagues. J.A. 10449–50. Thus, the loss by Apple of a single smartphone or tablet customer may have a far-reaching impact on
Despite its finding that Apple’s sales-based losses were difficult to quantify, the district court nonetheless found that this factor weighed against injunctive relief based on its determination that Apple had failed to establish any irreparable harm. Injunction Order at *19. Apple argues that if we reverse the court on that point, this factor will also tip in its favor. We agree. Because we find the district court’s finding that Apple did not suffer any irreparable harm stemming from its losses of sales was predicated on a legal error, it also erred when it found that this factor weighs against an injunction. This factor strongly weighs in favor of Apple because, as the district court found, the extent of Apple’s downstream and network effect losses are very difficult to quantify.
C. Balance of Hardships
To satisfy the third eBay factor, the patentee must show that the balance of hardships weighs in its favor. 547 U.S. at 391. This factor “assesses the relative effect of granting or denying an injunction on the parties.” i4i, 598 F.3d at 862. Because “Apple’s proposed injunction targets only specific features, not entire products” and contains a 30-day “sunset provision,” Injunction Order at *20–21, and because “Samsung repeatedly told the jury that designing around the asserted claims of the three patents at issue would be easy and fast,” id. at *22, the district court found that Samsung would “not face any hardship” from Apple’s proposed injunction, id. at *19. The court, reasoning that “requiring a patentee to ‘compete against its own patented invention . . . places a substantial hardship’ on the patentee,” found that Apple would suffer hardship without an injunction. Id. at *22 (quoting Robert Bosch LLC v. Pylon Mfg. Corp., 659 F.3d 1142, 1156 (Fed. Cir. 2011)). The court therefore found that
Samsung argues that the district court erred in finding the balance of hardships favors the entry of an injunction. It argues that Apple will not suffer any hardship in the absence of an injunction because the patented features are minor components in a complex device. Samsung argues that it and its carriers, retailers, and customers would suffer substantial hardship if an injunction issued, particularly because the proposed injunction would extend to unadjudicated products with software that is “capable of implementing” the infringing features or other features “not colorably different.” Appellees’ Br. 55 & n.14 (quoting J.A. 2698).
The district court did not abuse its discretion in finding the balance of hardships favors an injunction; to the contrary, this factor strongly weighs in favor of an injunction. Samsung’s infringement harmed Apple by causing lost market share and lost downstream sales and by forcing Apple to compete against its own patented invention, which “places a substantial hardship” on a patentee, especially here where it is undisputed that it is essentially a two-horse race. Bosch, 659 F.3d at 1156. Furthermore, as the district court found, Apple’s proposed injunction was narrowly tailored to cause no harm to Samsung other than to deprive it of the ability to continue to use Apple’s patented features. Injunction Order at *21–22. The court has overseen the Apple-Samsung litigation from the beginning and has worked extensively with parties and their counsel. Given the court’s familiarity with the infringing products, the parties, and their history of litigation, it is best-positioned to determine the impact of the scope of the injunction on the parties. Furthermore, the district court presided over a trial in which Samsung’s witnesses and counsel assured the jury that design-arounds to the infringing features would be “simple or already exist.” Id. at *20. And Samsung
D. Public Interest
The fourth eBay factor requires the patentee to show that “the public interest would not be disserved by a permanent injunction.” 547 U.S. at 391. The district court found that the public interest “favor[s] the enforcement of patent rights to promote the encouragement of investment-based risk,” particularly where, as here, the patentee’s proposed injunction is narrow in scope and includes a sunset provision limiting the impact of the injunction on consumers. Injunction Order at *22–23 (quotation marks omitted). The court also noted that “an injunction may prompt introduction of new alternatives to the patented features.” Id. at *23. It therefore concluded that the public interest factor favors Apple.
Samsung argues that the district court erred in finding the public interest weighs in favor of an injunction. Samsung also argues that the proposed injunction, while styled as narrow, is actually quite broad and would lead to the removal of products from store shelves, which it
The district court did not abuse its discretion in finding that the public interest favors an injunction. Indeed, the public interest strongly favors an injunction. Samsung is correct—the public often benefits from healthy competition. However, the public generally does not benefit when that competition comes at the expense of a patentee‘s investment-backed property right. To conclude otherwise would suggest that this factor weighs against an injunction in every case, when the opposite is generally true. We base this conclusion not only on the Patent Act‘s statutory right to exclude, which derives from the Constitution, but also on the importance of the patent system in encouraging innovation. Injunctions are vital to this system. As a result, the public interest nearly always weighs in favor of protecting property rights in the absence of countervailing factors, especially when the patentee practices his inventions. “[T]he encouragement of investment-based risk is the fundamental purpose of the patent grant, and is based directly on the right to exclude.” Sanofi-Synthelabo v. Apotex, Inc., 470 F.3d 1368, 1383 (Fed. Cir. 2006) (quotation marks omitted).
This is not a case where the public would be deprived of Samsung‘s products. Apple does not seek to enjoin the sale of lifesaving drugs, but to prevent Samsung from profiting from the unauthorized use of infringing features in its cellphones and tablets. Again, Apple seeks only a narrow feature-based injunction commensurate in scope with its monopoly rights. And the evidence of record is that Samsung can effect the removal of the patented features without recalling any products or disrupting customer use of its products. Apple has not attempted to expand the scope of its monopoly. Given the important public interest in protecting patent rights, the nature of
CONCLUSION
The district court erred when it found the first two eBay factors weighed against an injunction. Although the evidence may not make a strong case of irreparable harm, Apple has satisfied the causal nexus requirement and therefore established irreparable harm.2 Apple has also established that the harm it will suffer is not easily compensable at law. Moreover, as the district court found, the balance of hardships and public interest weigh strongly in favor of an injunction. Given this, the district court abused its discretion when it did not enjoin Samsung‘s infringement. If an injunction were not to issue in this case, such a decision would virtually foreclose the possibility of injunctive relief in any multifaceted, multi-function technology. We vacate the district court‘s order denying Apple‘s proposed injunction and remand for further proceedings consistent with this opinion.
VACATED AND REMANDED
COSTS
Each party shall bear its own costs.
APPLE INC., A CALIFORNIA CORPORATION, Plaintiff-Appellant v. SAMSUNG ELECTRONICS CO., LTD., A KOREAN CORPORATION, SAMSUNG ELECTRONICS AMERICA, INC., A NEW YORK CORPORATION, SAMSUNG TELECOMMUNICATIONS AMERICA, LLC, A DELAWARE LIMITED LIABILITY COMPANY, Defendants-Appellees
2014-1802
United States Court of Appeals for the Federal Circuit
REYNA, Circuit Judge, concurring.
The Constitution bestows on Congress the power to secure inventors’ “exclusive Right[s]” to their inventions.
I write to add that I believe Apple satisfied the irreparable injury factor based on Samsung‘s infringement on Apple‘s right to exclude and based on the injury that the infringement causes Apple‘s reputation as an innovator. There is no dispute that Samsung has infringed Apple‘s right to exclude and, absent an injunction, it will likely continue to do so. I believe that such a finding satisfies the irreparable harm requirement because the infringement is, in this case, “irreparable.” On reputational injury, the roles are reversed: it is undisputed that such an injury is irreparable; the question is whether this injury will likely occur. As I explain below, I believe that the record here—particularly the toe-to-toe competition between Apple and Samsung, Apple‘s reputation as an innovator, and the importance of the patents-in-suit to that reputation—establishes that Apple will likely suffer irreparable harm to its reputation.
A patentee‘s rights spring forth from the Constitution, which gives Congress the power to “secur[e] for limited Times to . . . Inventors the exclusive Right to their respective . . . Discoveries.”
These monopoly rights do not necessarily entitle a patentee to injunctive relief. At least as far back as the 17th century, courts have required a showing of “irreparable” injury before granting injunctive relief. See Laycock, Douglas, Death of the Irreparable Injury Rule, 103 Harv. L. Rev. 687, 699 (1990) (“Laycock“). After Congress passed the first Patent Act in 1790 up until 1819, American courts generally found that the patent statutes provided damages as the remedy for patent infringement, meaning that infringement of patent rights did not constitute an irreparable injury. See Root v. Lake Shore & M.S. Ry. Co., 105 U.S. 189, 192 (1881); Frankfurter, Felix, The Business of the Supreme Court of the United States — A Study in the Federal Judicial System, 39 Harv. L. Rev. 587, 616–17 (1926). In 1819, Congress specifically granted courts the authority to grant injunctions in cases involving patent infringement. Root, 105 U.S. at 192. From this point until the 20th century, courts granted
In eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006), the Supreme Court rejected that default rule, holding that a plaintiff seeking a permanent injunction must satisfy the four-factor test historically employed by courts of equity, including establishing irreparable injury. Id. at 391, 393. Though we read eBay to overrule our presumption of irreparable injury, we cautioned that courts should not necessarily “ignore the fundamental nature of patents as property rights granting the owner the right to exclude.” Robert Bosch LLC v. Pylon Mfg. Corp., 659 F.3d 1142, 1149 (Fed. Cir. 2011). Yet our recent cases have done precisely that, ignoring the right to exclude in determining whether to issue an injunction. Indeed, our opinions in the most recent cases between
I believe that this recent trend extends eBay too far. Infringement on the right to exclude is, in my view, an “injury” that is sometimes irreparable. An “injury” is not limited to tangible violations but rather encompasses “violation[s] of another‘s legal right, for which the law provides a remedy; a wrong or injustice.” Injury, Black‘s Law Dictionary (10th ed. 2014) (emphasis added). Courts have routinely granted injunctions when constitutional rights are at issue. 11A Charles Alan Wright et al. Federal Practice & Procedure § 3942 (3d ed.). Nor is this approach limited to rights derived from the Constitution—courts have granted injunctions against private parties based on various statutorily-granted rights. See, e.g., E.E.O.C. v. Cosmair, Inc., L‘Oreal Hair Care Div., 821 F.2d 1085, 1090 (5th Cir. 1987) (employment discrimination); Park Vill. Apartment Tenants Ass‘n v. Mortimer Howard Trust, 636 F.3d 1150, 1152 (9th Cir. 2011) (statutory housing rights); Armstrong v. Schwarzenegger, 622 F.3d 1058 (9th Cir. 2010) (ADA rights).
There is no reason to treat patent rights differently. As the majority aptly puts it, the right to exclude is “important.” Maj. Op. at 12. The patentee earned this right by disclosing a useful invention to the public. See
Such an injury can be irreparable. In this context, “irreparable” does not mean that the injury cannot be remedied at all. If that were the case, the plaintiff would not have standing to sue. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). What makes an injury “irreparable” is that legal damages, i.e., monetary relief, cannot remedy the harm. See Laycock at 694. Courts have provided several reasons why this may be the case, including instances in which injury is repeated or threatened, substitutes are difficult to obtain, or damages are difficult to measure. See, e.g., Mark P. Gergen et al., The Supreme Court‘s Accidental Revolution? The Test for Permanent Injunctions, 112 Colum. L. Rev. 203, 237 (2012) (“Gergen“).
The last of these concerns was the reason courts traditionally found infringement of intellectual property rights to be irreparable. As Chief Justice Roberts explained in his eBay concurrence:
From at least the early 19th century, courts have granted injunctive relief upon a finding of infringement in the vast majority of patent cases. This “long tradition of equity practice” is not surprising, given the difficulty of protecting a right to exclude through monetary remedies that allow an infringer to use an invention against the patentee‘s wishes—a difficulty that often implicates the first two factors of the traditional four-factor test.
An industry has developed in which firms use patents not as a basis for producing and selling goods but, instead, primarily for obtaining licensing fees. For these firms, an injunction, and the potentially serious sanctions arising from its violation, can be employed as a bargaining tool to charge exorbitant fees to companies that seek to buy licenses to practice the patent. When the patented invention is but a small component of the product the companies seek to produce and the threat of an injunction is employed simply for undue leverage in negotiations, legal damages may well be sufficient to compensate for the infringement and an injunction may not serve the public interest.
Id. at 396–97. Where the patentee is an entity that uses patents primarily to obtain licensing fees, its business objectives are premised on monetary relief being sufficient to compensate for infringement. The relationship between the patentee and the infringer is also relatively simple, making damages relatively straightforward to calculate.
That is not the case here. Apple‘s business objectives encompass far more than obtaining licensing fees. And the relationship between Apple and Samsung is complex. Apple and Samsung “fiercely” compete in the mobile device hardware and software markets. The device hardware market includes multiple competitors, but Apple and Samsung stand alone as the market leaders. They also compete in the device operating system market, where Apple‘s “iOS” operating system competes with Google, Inc.‘s “Android” operating system.
From Samsung‘s perspective, the competition was equally vigorous. In its internal marketing documents, Samsung listed one of its 2010 objectives in market reputation terms to “overcome fast follower status and establish Samsung as a challenger to Apple.” J.A. 11703. In Samsung‘s view, the marketplace mainly involved competition between devices that run Apple‘s iOS and devices that run Google‘s Android. J.A. 11708. Indeed, Samsung‘s counsel asserted in its opening statement that “Apple has sued . . . the biggest user of Google‘s Android software and the most successful manufacturer of Android phones, Samsung, to try to prevent it from selling phones with that leading Android software . . . .” J.A. 10361. Samsung, however, also attempted to distinguish its
This evidence demonstrates that the relationship between Apple and Samsung is dramatically different from a non-practicing entity and an infringer. Apple‘s business objective is not merely to obtain licensing fees from Samsung. Rather, it seeks to firmly establish and grow its market share in the rapidly evolving smartphone and tablet market. In a marketplace this complex, it is difficult, if not impossible, for a court to accurately value Apple‘s right to exclude. How, for example, does Apple value its rights to exclude relative to other means for competing against Samsung? What effect does the infringement have on how consumers view subsequently released products? How would Apple‘s existing business relationship with Samsung factor into this valuation? Courts are not equipped to answer these questions.
In sum, a jury found that Samsung infringed Apple‘s right to exclude. Apple has been injured and, absent an injunction, that injury will likely continue. eBay and its progeny explain that such a finding is not necessarily sufficient to meet the irreparable harm requirement. But that does not mean we should ignore this injury. In view of Apple‘s and Samsung‘s unique competition, I would conclude a court cannot accurately determine the extent of Apple‘s injury, and thus, I would find that Samsung‘s infringement of Apple‘s patent rights irreparably injures Apple.
Having determined that Apple established irreparable injury via lost downstream sales, the majority opinion does not reach the issue of reputational injury. Maj. Op. at 22, n.2. I would reach this issue and hold, in the alternative, that Samsung‘s continued infringement would irreparably injure Apple‘s reputation as an innovator.
To establish any irreparable injury, this court has generally required the plaintiff to establish a “causal nexus“: “[t]o show irreparable harm, it is necessary to show that the infringement caused harm in the first place.” Apple I, 678 F.3d at 1324 (emphasis added). The problem with this formulation is that it necessarily focuses on the past, and in doing so effectively requires the plaintiff to show a near certainty of irreparable harm and not a “likelihood” of harm. As the Supreme Court explained more than sixty years ago, injunctive relief addresses future harms and the past is only relevant as an indicator of the future:
The sole function of an action for injunction is to forestall future violations. . . . All it takes to make the cause of action for relief by injunction is a real threat of future violation or a contemporary violation of a nature likely to continue or recur. . . . In a forward-looking action such as this, an examination of ‘a great amount of archeology’ is justified only when it illuminates or explains the present and predicts the shape of things to come.
United States v. Or. State Med. Soc., 343 U.S. 326, 333 (1952) (Jackson, J.). In Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008), the Court further explained that a plaintiff must show that irreparable injury is “likely” in
A plaintiff can meet this burden by showing that it will likely suffer an injury and, separately, satisfy the nexus requirement by showing that this injury is causally linked to the infringement. The plaintiff‘s evidence often comes in the form of empirical data showing both a past injury and a causal link between that injury and the past infringement.4 The district court faults Apple for not following this methodology here, finding significant that Apple‘s data do not empirically show that its reputation had been harmed. Apple Inc. v. Samsung Elecs. Co. Ltd., No. 12-CV00630, 2014 WL 7496140, at *15–17 (N.D. Cal. Aug. 27, 2014). But our case law does not require a plaintiff to follow this methodology. A plaintiff can instead rely on a theory of causation to show that it will be irreparably harmed. In other words, the plaintiff can show both the presence of irreparable injury and the causal nexus by establishing circumstances under which
In that case, the patentee, Douglas Dynamics, and infringer, Buyer Products, were competitors in the market for snowplow assemblies often mounted on the front of a truck. Id. at 1339. Douglas Dynamics had about sixty percent of the market share and was recognized as being an innovator. Id. The patented features were recognizable by consumers, thus influencing how consumers viewed Douglas Dynamics. The patented features included a mounting frame that did not extend beyond the vehicle‘s bumper, reducing the likelihood of inadvertent damage and allowing drivers to “remove heavy portions of the snowplow assembly from the vehicle when the plow is not in use, thus reducing stress on the vehicle‘s suspension.” Id.
We held that the district court abused its discretion in finding that Douglas did not meet the irreparable injury factor. Id. In particular, we held—without any empirical evidence of injury or causal nexus—that the district court‘s finding that Douglas Dynamics‘s reputation would not be injured by the infringement was clearly erroneous. Id. at 1344. Infringement, we explained, can harm a company‘s reputation, “particularly its perception in the marketplace by customers, dealers, and distributors.” Id. Douglas Dynamics‘s reputation would “certainly be damaged” if customers found the patented features appearing in a competitor‘s product. Id. at 1344–45. Douglas Dynamics would be perceived as less of an innovator because its competitors could incorporate the patented features without noting that they belonged to Douglas Dynamics. Id. at 1344. Exclusivity, we further explained, is “an intangible asset that is part of a company‘s reputation.” Id. at 1345. “Where two companies are in competition against one another, the patentee suffers the harm—often
On the record before us, I would hold that Apple has shown that it will likely suffer irreparable injury. First, Apple and Samsung are direct competitors in the smartphone and tablet market. We have repeatedly held after eBay that competition between the patentee and the infringer, particularly direct competition, strongly militates toward a finding of irreparable harm. As noted above, in Douglas Dynamics, we focused on the competition between the patentee and the infringer. Id. In Presidio Components, we explained that direct competition is “one factor suggesting strongly the potential for irreparable harm.” Presidio Components Inc. v. Am. Tech. Ceramics Corp., 702 F.3d 1351, 1363 (Fed. Cir. 2012) (internal citation omitted). And in Trebro Manufacturing, we explained that because the record showed that the patentee and the infringer were direct competitors, it “strongly show[ed] a probability for irreparable harm.” Trebro Mfg. v. Firefly Equipment, 748 F.3d 1159, 1171 (Fed. Cir. 2014). This factor is especially strong here because Apple and Samsung are toe-to-toe competitors in a unique marketplace.
Second, like Douglas Dynamics, Apple‘s reputation as an innovator is critical to its ability to compete against Samsung. As the district court explained, Apple has a strong reputation as being an innovator in the smartphone and tablet market. See 2014 WL 7496140 at *15. Samsung appears to concede this point, going so far as to refer to Apple as an “amazing innovative company” in its opening statement at trial. J.A. 10361. Mr. Schiller testified that Apple prizes this reputation, explaining that the “very DNA” of Apple is that it is an innovator that
The patents at issue here cover the types of features that made Apple‘s products the “hero.” These patents cover features that consumers regularly interact with, thereby influencing how consumers perceive Apple, not latent features which consumers may not be aware of. Douglas Dynamics, 717 F.3d at 1339. For example, U.S. Patent No. 5,946,647 discloses software that allows a user to take action with respect to a detected phone number by dialing a phone number without exiting one program and entering another. ‘647 patent col. 5 ll. 38–50. These features were so important that Apple included it across all of its products, including iPhones and iPads. J.A. 10794. U.S. Patent No. 8,046,721 discloses a device that a user unlocks with gestures. ‘721 patent col. 8 ll. 49–55. This feature was one of the features that Apple marketed in its first ads. It represented a “great beginning” that customers often utilize. J.A. 10433–34, 21014, 10602–04. Similarly, U.S. Patent No. 8,074,172 discloses a method for automatically correcting spelling errors as a user types words using a touchscreen device, a boon for those who would accept a misspelled word in favor of looking up its correct spelling. ‘172 patent col. 9 ll. 11–27.
In Douglas Dynamics, we explained that when customers find the patentee‘s innovations appearing in a competitor‘s product, the patentee‘s reputation as an innovator will “certainly” be damaged. Douglas Dynamics, 717 F.3d at 1344–45. That reasoning applies with great force here. Though the parties dispute whether Apple practices every aspect of the claimed inventions, it is essentially undisputed that Apple‘s products include similar features that compete with the patented features,
Apple‘s reputational injury is all the more important here because of the nature of Apple‘s reputation, i.e., one of an innovator (as opposed to, e.g., a producer of low-cost goods). Consumers in the smartphone and tablet market seek out innovative features and are willing to pay a premium for them. Sometimes consumers in this market will even prioritize innovation over utility. A reputation as an innovator creates excitement for product launches and engenders brand loyalty. Samsung recognized the importance of such a reputation and set its sights not on developing more useful products, but rather to overcome the perception that it was a “fast follower.” Apple, 2014 WL 7496140, at *8.
Samsung argues that some or all of the patented features not being exclusive to Apple “defeats any claim of reputational harm.” Appellee Br. 38. Apple appears to concede that it has license agreements with Nokia and HTC.5 Appellant Br. 46. Apple also appears to have license agreements with Microsoft and IBM, but Samsung did not rely on these licenses before the district court.
Samsung also argues that a reliance on the factors described in Douglas Dynamics would create a “per se” rule of the sort that the Supreme Court rejected in eBay. Appellee Br. 30. Indeed, a theme that runs through both parties’ briefing is that the other side‘s reasoning would impermissibly create a per se rule. Both sides are of course correct that eBay rejected this court‘s “categorical
III. CONCLUSION
I would hold that Samsung‘s infringement amounted to an irreparable injury to Apple‘s right to exclude. That injury is sufficient, based on the facts of this case, to grant an injunction. Apple also has shown that Samsung‘s infringement will likely injure its reputation as an innovator in the fiercely competitive smartphone and tablet market.
This is not a close case. One of the Apple patents at issue covers a spelling correction feature not used by Apple. Two other patents relate to minor features (two out of many thousands) in Apple‘s iPhone—linking a phone number in a document to a dialer, and unlocking the screen. Apple alleged that it would suffer irreparable harm from lost sales because of Samsung‘s patent infringement. For support, Apple relied on a consumer survey as direct evidence, and its allegations of “copying”
So why doesn‘t it? Because the majority finds legal error by the district court where none exists. Then, under the guise of the purported “legal error,” the majority reverses without deference the district court‘s rejection of Apple‘s survey evidence, never mentioning that the survey was rejected by the district court because Samsung‘s serious challenges to its techniques and conclusions were unrebutted by Apple. The majority further relies on “evidence,” found nowhere in the record, that carriers or users preferred having the patented features on Samsung‘s phones. It also concludes—contrary to our case law—that Apple‘s alleged evidence of “copying” is sufficient to show nexus to Apple‘s alleged lost-sales. Because the majority here reaches a result that comports with neither existing law nor the record in this case, I must respectfully dissent.
A
Injunctions in patent cases, as in other areas of law, require evaluating the traditional four factors, including irreparable harm. Following eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006), when the infringing feature is but one of several components of the accused product, our precedent has clearly and consistently required patentees requesting injunctions to establish a nexus between the alleged irreparable harm and the patent infringement. This nexus showing is, of course, an indispensable pre
B
Turning to the case, the majority‘s first error is its determination that the district court‘s analysis was legally erroneous. Specifically, the majority states that, regarding Apple‘s alleged irreparable harm from lost sales, “it was legal error for the district court to effectively require Apple to prove that the infringement was the sole cause of the lost downstream sales.” Majority Op. at 11; see also id. at 12, 16. But the majority quotes nothing from the district court‘s opinion to show there is such an error. And for good reason: there is nothing. Hence, there is no error.
The words “sole” and “predominant” are not even present in the district court‘s opinion.1 There is simply
In reality, however, the district court simply weighed the evidence and found it lacking: “[t]he weight of the evidence shows that Apple‘s conjoint study fails to demonstrate that the features claimed in the ‘647, ‘721, and ‘172 patents drive consumer demand for Samsung‘s infringing products.” Injunction Order at *13. The district court reasoned that Apple made “only cursory arguments” about Dr. Hauser‘s survey, while in contrast, Samsung challenged its myriad deficiencies including that the survey “omitted the major factors and major drivers of sales,” “overstated the scope of the claimed features and improperly included noninfringing alternatives,” and “produced nonsensical results, such as the conclusion that the patented word correction feature (corresponding to the ‘172 patent) was worth about $102 on a phone that cost $149.” Id. at *12–13. The district court therefore found that Apple “d[id] not rebut Samsung‘s critiques of Dr.
Samsung. Concurrence at 16. But the party requesting injunction bears more than the “burden of production;” it bears the “burden of proving irreparable harm,” a burden which Apple failed to meet. See Robert Bosch LLC v. Pylon Mfg. Corp., 659 F.3d 1142, 1154 (Fed. Cir. 2011). Apple‘s failure of proof cannot be excused by disregarding the district court‘s factual findings and arbitrarily shifting the burden of proof to Samsung.
In making these factual findings, the district court followed our case law faithfully. Nothing in the district court‘s opinion suggests that it deviated from our precedent. Rather, the majority deviates from our precedent by repeating as a mantra the phrase “some connection” in Apple Inc. v. Samsung Electronics Co., 735 F.3d 1352 (Fed. Cir. 2013) (”Apple III“) detached from the causal nexus standard explained in our prior cases. See Majority Op. at 9, 10, 11 n.1, 12, 17. For example, we have held that
It is not enough for the patentee to establish some insubstantial connection between the alleged harm and the infringement and check the causal nexus requirement off the list. The patentee must rather show that the infringing feature drives consumer demand for the accused product.
Apple Inc. v. Samsung Elecs. Co., 695 F.3d 1370, 1375 (Fed. Cir. 2012) (”Apple II“). We quoted the precise language from the latter sentence above and explicitly acknowledged the continuing force of this requirement in Apple III. Apple III at 1364 (quoting id.). The majority seems to ignore this consistent standard and concludes to the contrary that showing that a patented feature is a “significant driver of customer demand” is not necessary to prove causal nexus to the alleged lost sales. Majority Op. at 17.
The majority reaches its conclusion through a peculiar extrapolation of four examples in Apple III, three of which immediately followed the “some connection” remark to show how the causal nexus may be met. Perhaps conceding that the facts of this case do not meet these three examples, the majority simply dismisses the examples as failing to “delineate or set a floor” for the necessary connection and that something far less is sufficient. Id. at
The majority further relies on the fourth example elsewhere in Apple III, one in which the nexus would be insufficient, where consumers are willing to pay only a nominal premium of $10 for an infringing cup holder in a $20,000 car. Id. at 1368. According to the majority, there must be at least a stronger connection than a willingness to pay a nominal premium to satisfy its “some connection” standard.2 Majority Op. at 11 n.1. The irony, of course, is that Apple‘s evidence still fell short of even this meager and insufficient cup holder example because Apple failed to offer any defensible evidence on consumers’ willingness to pay even a nominal premium for the patented features over non-infringing alternatives. See Injunction Order at *13 (finding that Apple “d[id] not rebut Samsung‘s critiques of Dr. Hauser‘s techniques or show that Apple‘s conjoint study in this case establishes a causal nexus.“).
The bottom line is that the district court‘s rejection of Apple‘s direct survey evidence was not clearly erroneous. This simple fact is in stark contrast to the majority‘s contortions in an attempt to avoid it. The majority has no legitimate basis to reverse the district court.
Hamstrung by the deficiencies in Apple‘s direct survey evidence, the majority trumpets instead Apple‘s “copying” evidence and even creates new evidence:
Given the strength of the evidence of copying and Samsung‘s professed belief in the importance of the patented features as a driver of sales, and the evidence that carriers or users also valued and preferred phones with these features, the district court erred by disregarding this evidence, which further establishes a causal nexus and Apple‘s irreparable harm.
Majority Op. at 15. All three parts of this statement are wrong: there was no evidence at all of such “carriers’ or users’ preference;” there was no “strong” evidence of “copying;” and “copying” alone is not dispositive to establish a causal nexus to Apple‘s alleged irreparable harm from lost sales.
First, the majority‘s “carriers’ or users’ preference” theory was not mentioned at all by the district court. The majority asserts that “[t]he district court acknowledged that Apple presented evidence that carriers (‘721 patent) and users (‘172 patent), not just Samsung, preferred and valued the infringing features and wanted them in Samsung phones.” Id. at 15. The majority again quotes nothing from the district court‘s opinion to show there is such an acknowledgement. Again for good reason: there is nothing. As the majority notes just two sentences later, the district court “failed to appreciate” that the evidence cited by Apple “did not just demonstrate that Samsung valued the patented features, but also that its carriers or users valued the features.” Id. The district court could not have “acknowledged” what it “failed to appreciate.” The majority reaches its creative interpretation of the evidence to find “carriers’ or users’ preference” all on its own.
This e-mail message mentioned no users’ or carriers’ criticisms of Samsung‘s non-infringing alterative to the ‘172 patent‘s method. See J.A. 20983–88, J.A. 10700–02. Moreover, even if this e-mail were to show such criticisms, a negative view towards a non-infringing feature does not prove a positive preference towards the patented feature. Consumers could have preferred many other non-infringing word correction alternatives to the ‘172 patent, including Apple‘s implementation in its “undisputedly
Likewise, I can only guess that the majority‘s “carriers (‘721 patent) preference” theory is relying on its earlier statement that “Samsung e-mails not[ed] that certain carriers disapproved of the noninfringing ‘circle lock’ alternative,” for that is the only statement by the majority tying the ‘721 patent to carriers. See id. at 12 (citing J.A. 21019). The document in the Joint Appendix on page 21019, however, is merely an internal Samsung e-mail message referring to a single carrier‘s “negative response towards our company‘s circle lock playing the role of the unlock visual cue.” The majority‘s characterization of the negative response as a “disapproval” is much too strong because the response was only preliminary; the carrier had not reviewed an actual working sample and was “request[ing] to review actual working sample . . . .” See id. Moreover, as discussed above, a negative view towards a non-infringing feature does not prove a positive preference for the patented feature. The evidence cited by the majority of a “negative response” does not show that any carrier preferred the feature defined by the ‘721 patent. The majority‘s “carriers’ or users’ preference” arguments and the factual record it builds for support dissolve upon review of the evidence.
What we are therefore left with is the majority‘s reliance on the so-called “copying” by Samsung to justify its reversal of the district court‘s finding of no irreparable harm from lost sales. And the factual support is weak. The majority concedes as much in concluding that “the evidence may not make a strong case of irreparable harm . . . .” Id. at 22.
Nevertheless, the majority states that “[t]he district court wrote that there was evidence . . . ‘indicative of copying.‘” Id. at 13. The quotations upon which the majority relies, however, are not the district court‘s find
The district court also discounted Apple‘s evidence of “copying,” because “[s]ome of the cited Samsung documents show that Samsung valued numerous other noninfringing features.” See id. In fact, Apple‘s evidence of “copying” lacked any connection to the critical details that define the patented features. The handful of internal Samsung documents cited by Apple merely addressed generic or un-patented aspects of Apple‘s linking and screen-unlocking features. For example, one internal Samsung analysis recommended that Samsung provide “Links for memo contents such as Web, Call and E-mail, that can be linked.” J.A. 20584. But the asserted ‘647 patent claim does not monopolize the general concept of linking from documents; it is limited instead by specific elements such as “display[ing] a pop-up menu of the linked actions” and more. See Injunction Order at *1 (detailing asserted ‘647 patent claim 9). None of these critical elements were addressed in Apple‘s “copying” evidence.
Finally, the majority concludes that the evidence in this case, which boils down to Apple‘s allegations of “copying,” is enough to show nexus to Apple‘s alleged irreparable harm from lost sales. This conclusion is contrary to our precedent. As the district court stated, “the parties’ subjective beliefs about what drives consumer demand are relevant to causal nexus, but do not independently satisfy the inquiry.” Id. at *14. Once again, the district court was doing nothing more than faithfully following our case law. We have repeatedly affirmed the district court‘s previous rejections of the same allegations of “copying” as insufficient to show irreparable sales-based harm. Apple I at 1327; Apple III at 1367. As we have explained, to prove nexus to the alleged lost-sales, “the relevant inquiry focuses on the objective reasons as to why the patentee lost sales, not on the infringer‘s subjective beliefs as to why it gained them (or would be likely to gain them).” Apple I at 1327–28.
The district court was well within its discretion to reject Apple‘s contentions of “copying.” There is simply no basis for this court, on an abuse of discretion review, to
D
In sum, the majority states that “the evidence [of consumer preferences and buying choices] is to be determined on a case-by-case basis based on what the evidence indicates.” Majority Op. at 14. The district court did exactly that in this case. Given the unassailable factual findings by the district court, the majority faces a tough mountain to climb to reach a reversal.
Thus, in order to reach its result, as described above, the majority rests on findings of non-existent legal error, of “carriers’ preference” created without record support, and of “copying” as dispositive to show causal nexus to lost sales that is contrary to our case law. I must disagree with the majority‘s approach and its conclusion that Apple would suffer irreparable harm from Samsung‘s patent infringement.3
Finally, I also note the majority‘s discussion on the public interest factor. I agree with the majority that the public‘s interest in competition, without more, does not necessarily decide this factor against granting an injunction. But it does not follow that the public interest “nearly always” favors granting an injunction as the majority states. According to the majority, “[i]njunctions are vital to this system. As a result, the public interest nearly always weighs in favor of protecting property rights, especially when the patentee practices his inventions.” Id. at 21.
The majority repeatedly relies on the statutory right to exclude others from practicing a patent and the public policy embodied in the statute. See id. at 5–6, 12, 21. But I am confident that we all remain mindful that pre-eBay, “[a]ccording to the Court of Appeals, this statutory right to exclude alone justifie[d] its general rule in favor of permanent injunctive relief.” eBay, 547 U.S. at 392. The Supreme Court, however, unanimously rejected that approach, reasoning that “the creation of a right is distinct from the provision of remedies for violations of that right.” Id. For the same reason, the statutory right to exclude should not categorically bias the public interest factor “strongly” in the determination of the injunctive remedies as the majority asserts. See Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982) (“The Court has repeatedly held that the basis for injunctive relief in the federal courts has always been irreparable injury and the inadequacy of legal remedies.“). The particular facts of a given case matter. As Justice Kennedy explained, “[w]hen the patented invention is but a small component of the product the companies seek to produce and the threat of an injunction is employed simply for undue leverage in negotiations, legal damages may well be sufficient to compensate for the infringement and an
Based on this record, I cannot agree with the majority‘s broad warning that “[i]f an injunction were not to issue in this case, such a decision would virtually foreclose the possibility of injunctive relief in any multifaceted, multifunction technology.” See Majority Op. at 22. Rather, injunctive relief will be appropriate when and if, consistent with our case law, the causal nexus requirement is met. This is not such a case.