A district court in Vermont is typically bound by Second Circuit precedent. When that same court is deciding a patent issue, however, it must defer to the Federal Circuit's standards of proof.
Confusion regarding the proper standard is an reasonable mistake, but one that can result in a remand.
Revision Military, Inc., and Balboa Manufacturing Co. design, manufacture, and sell protective eyewear. Revision alleges that Balboa's new "Bravo" design protective goggles (also called "Bobster Bravo") copied and infringes Revision's patented "Bullet Ant" goggles.
Revision sued, and moved for a preliminary injunction to enjoin Balboa from making and selling the Bobster Bravo goggles while the litigation is pending. The district court denied the preliminary injunction.
On Revision's appeal, the Federal Circuit Court of Appeals vacated and remanded that decision, concluding that the district court employed the wrong standard of proof in its analysis.
Generally, 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. Within that framework, the circuits have developed elaborations in response to particular circumstances.
The Second Circuit, for example, uses a heightened standard of "clear" or "substantial" likelihood of success on the merits when a movant seeks "an injunction that will alter rather than maintain the status quo." Here, the Vermont-based district court held that the Second Circuit's heightened standard should apply in this case.
The Federal Circuit disagreed, noting, "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 heightened "clear or substantial likelihood" standard, but rather the Federal Circuit's standard of whether success is more likely than not."
- Revision Military v. Balboa (Federal Circuit Court of Appeals)
- Federal Circuit Vetoes Voting Machine Patent Appeal (FindLaw's Federal Circuit Blog)
- Changing of the Guard: David Kappos Leaving USPTO in January (FindLaw's Federal Circuit Blog)