New Federal Circuit Opinion Reduces the Likelihood of Obtaining a Preliminary Injunction in Patent Suits

The Federal Circuit recently raised the bar for obtaining a preliminary injunction in patent litigation. To obtain a preliminary injunction, a plaintiff must establish that it is likely to succeed on the merits of its lawsuit and that he will likely suffer irreparable harm in the absence of preliminary relief, among other things. In its October 11, 2012 opinion arising out of the ongoing litigation between Apple and Samsung, the court held that the irreparable harm element of a preliminary injunction required proof that consumers buy the infringing product because of the infringing feature covered by the patent in suit. Evidence that an infringing feature of a product is a “core” feature in consumers’ minds can be difficult to establish. As a result, it will likely be more difficult to obtain a preliminary injunction in patent litigation going forward

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