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Competing Without Practicing?Preliminary Injunctions for Patent Infringement
April 24, 2014

InTrebo Manufacturing, Inc., v. Firefly Equipment, LLC, the Federal Circuit held that a plaintiff seeking a preliminary injunction for patent infringement does not need to practice the patent at issue in order to receive an injunction, so long as it sells a competing product. Trebro brought suit alleging that FireFly's sod harvester product infringed its U.S. Patent No. 8,336,638, and seeking a preliminary injunction to stop the infringement. The United States District Court for the District of Montana denied Trebro's request for a preliminary injunction, finding insufficient likelihood of success on the merits of the patent infringement claims and no irreparable harm to Trebro.

On appeal, the Federal Circuit vacated, finding that the district court erred in its claim construction, and that it therefore abused its discretion in finding no likelihood of success on the merits. In addition, the Federal Circuit held that "the fact that Trebro does not presently practice the patent does not detract from its likely irreparable harm." Because Trebro and FireFly compete in the same tiny, niche market, there is a strong probability of irreparable harm, and "a party that does not practice the asserted patent may still receive an injunction when it sells a competing product."

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