February 7, 2023

Volume XIII, Number 38


February 07, 2023

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February 06, 2023

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Panel Rejects Status Quo Arguments and Upholds Injunction

In BlephEx, LLC v. Myco Industries, Inc., Nos. 21-1149, 21-1365 (Fed. Cir. Feb. 3, 2022), the Federal Circuit affirmed the Eastern District of Michigan’s preliminary injunction enjoining Myco from selling its product AB Max, used for treating blepharitis, an inflammation of the eyelids.

Myco began marketing AB Max in February 2019. A month later, BlephEx filed for and was later granted U.S. Patent No. 10,449,087. That same day its patent issued, BlephEx sued Myco, alleging infringement. The district court granted a preliminary injunction in favor of BlephEx. Myco appealed.

On appeal, Myco argued that the preliminary injunction improperly upset the status quo and was overly broad. The Federal Circuit first found that Myco applied the wrong standard for the status quo, which should be analyzed at the time the preliminary injunction was granted, not at the time the patent issued. It also found the status quo does not override the other injunction factors. The Federal Circuit, in analyzing the remaining factors, determined BlephEx would suffer irreparable harm as a result of AB Max sales and held that the district court did not abuse its discretion in barring all domestic sales of AB Max. The Court, therefore, upheld the injunction.

© 2023 Finnegan, Henderson, Farabow, Garrett & Dunner, LLPNational Law Review, Volume XII, Number 42

About this Author

Law Clerk

Andrew Schneider’s varied practice includes patent prosecution and post-grant proceedings before the Patent Trial and Appeal Board (PTAB) of the U.S. Patent and Trademark Office (USPTO). He works with a diverse set of technologies, including textiles, consumer products, and augmented reality (AR) devices

Kara Specht Patent Litigation Attorney Finnegan, Henderson, Farabow, Garrett & Dunner Law Firm Atlanta GA

Kara Specht focuses on patent litigation before district courts and before the International Trade Commission (ITC). Her practice covers a wide range of electronic and electrical technology areas related to computers, consumer electronics, and computer-implemented business methods.

Kara has experience in all aspects of patent litigation before district courts, the ITC, and the Federal Circuit. Before district court and the ITC, Kara has experience from both a plaintiff and defendant perspective, ranging from pre-filing planning and strategy,...

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Esther H. Lim Patent Litigation Attorney Finnegan Law Firm Washington, DC

Esther Lim has twenty-five years of experience in patent litigation, portfolio management, licensing, and counseling. She has litigated extensively before federal district courts, the International Trade Commission (ITC), and the U.S. Court of Appeals for the Federal Circuit (CAFC) in complex matters involving a wide range of technologies from electrical to mechanical to pharmaceutical. Esther served as the founding managing partner of Finnegan’s Shanghai office. She is the past president of the D.C. Bar with 110,000 members.

Over two decades of diverse professional endeavors and...

Elizabeth Ferrill Patent Attorney Finnegan Law Firm

Elizabeth Ferrill is an “undisputed expert on design patents” who is “always updated and enlightening others with her deep knowledge,” “very involved in the design bar,” and “gives her clients an outstanding service” as noted in Intellectual Asset Management Patent 1000. She focuses her practice on all aspects of design patents, including prosecution, counseling, post-grant, and litigation.

Elizabeth counsels clients who hold design patents as well as those accused of infringement. She has experience with design patents related to consumer and industrial products, medical...

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