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12.02.2009 Blog

Court Puts a Freeze on Preliminary Injunctions after Winter v. Natural Resources



The Eastern District of Virginia recently denied a preliminary injunction to PRE Holding, Inc., a patent infringement plaintiff seeking to enjoin the sale of certain allegedly infringing devices sold by Defendants, which included a “valved holding chamber” that aids in the delivery of aerosolized medication to patients through inhalation.  PRE Holding, Inc. v. Monaghan Med. Corp., Civ. Action No. 3:09-cv-00458 (E.D. Va. Nov. 17, 2009).  In doing so, the Court invoked the Supreme Court’s recent decision in Winter v. Nat’l Res. Defense Council, Inc., 129 S. Ct. 365 (2008).  Explaining that Winter “restated and clarified” the well settled four-factor standard for preliminary injunctive relief, the Court noted that the Chief Justice, speaking for the Court, “emphasized that ‘injunctive relief [is] an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.”  Turning to the merits of PRE’s motion, the Court reiterated this “clear showing” requirement with respect to the likelihood of success on the merits factor, and cited to Real Truth About Obama v. Fed. Election Comm’n, 575 F.3d 342 (4th Cir. 2009) as further support.  Ultimately, the Court concluded that PRE failed to make the requisite clear showing of a likelihood of success on the merits.


The Federal Circuit, though, whose law governs preliminary injunction motions in patent cases, has not invoked this dictum from Winter, and has stated both before and since that a patentee need only make a showing of a “reasonable” likelihood of success on the merits.  See Titan Tire Corp. v. Case New Holland, Inc., 566 F.3d 1372, 1375-76 (Fed. Cir. 2009) (quoting Winter, 129 S. Ct. at 374).  Indeed, the Federal Circuit has held that at the preliminary injunction phase, the movant “need not present sufficient evidence to be entitled to summary judgment,” New England Braiding Co. Inc. v. A.W. Chesterton Co., 970 F.2d 878, 882-83 n.4 (Fed. Cir. 1992), and that a patentee need not make a “strong,” or “clear” showing of likelihood of success on the merits to prevail, Roper Corp. v. Litton Sys., Inc., 757 F.2d 1266, 1271 n.5 (Fed. Cir. 1985).  Arguably then, the Court’s decision in PRE Holding raises the bar for patentees seeking preliminary injunctions in the Rocket Docket.


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