A party seeking an injunction must make a clear showing that it is at risk of irreparable harm. In cases where “the accused product includes many features of which only one (or a small minority) infringe,” a finding that the patentee will be at risk of irreparable harm “does not alone justify injunctive relief.” Apple v. Samsung II (2012) (parenthesis in original). Rather, the patentee must also establish that “the harm is sufficiently related to the infringement.” Id. The patentee must show that “a sufficiently strong causal nexus” relates the alleged irreparable harm to the infringement. Id. “The causal nexus requirement ensures that an injunction is only entered against a defendant on account of a harm resulting from the defendant’s wrongful conduct, not some other reason.” Apple v. Samsung IV (2015). The requirement “applies equally to the preliminary and permanent injunction contexts.” Apple v. Samsung III (2013).
The standard. The patentee isn’t required to show that the patented feature is the sole reason for the irreparable harm. See Apple III (holding that district court erred by requiring patentee “to show that one of the patented features is the sole reason consumers purchased” the defendant’s product); see also Genband v. Metaswitch (rejecting district court’s application of an “unduly demanding” causal nexus approach). Rather, the patentee “must show some connection between the patented feature and” the alleged irreparable harm. Apple III.
Lost Sales. Where the harm is lost sales, the patentee must show some connection between the patented feature and demand for the infringer’s accused products. Genband. There are a variety of ways to make this required showing, for example, “with evidence that a patented feature is one of several features that cause consumers to make their purchasing decisions;” or “evidence that the inclusion of a patented feature makes a product significantly more desirable;” or “evidence that the absence of a patented feature would make a product significantly less desirable.” Apple III. The causal nexus inquiry only requires that the infringing “feature impacts customers’ purchasing decisions.” Apple IV (finding causal nexus shown where customers “wanted, preferred, and would pay extra for” the patented features; and where defendant “believed these features were important and copied them.”) “If all but an insignificant number of purchases from the infringer would have been made even without the infringing feature, the causal connection to the asserted lost-sale-based injury is missing.” Genband. The market characteristics between the parties may show the required nexus. Broadcom v. Emulex (finding a causal nexus where the parties were competitors in a “design wins” market, where there was a limited set of customers, and once a supplier was chosen, its component would be designed into the product for its life cycle).
Scope of the proposed injunction. “Whether a patentee’s irreparable harm stems from infringement of its patents is entirely independent of the scope of the proposed injunction.” Apple IV (rejecting argument that narrowing the injunction to only prohibit the infringing features can eliminate the causal nexus requirement). “Thus, a causal nexus linking the harm and the infringing acts must be established regardless of whether the injunction is sought for an entire product or is narrowly limited to particular features.” Id.
Patents in the aggregate. “[T]here may be circumstances where it is logical and equitable to view patents in the aggregate” instead of a patent-by-patent basis for the causal nexus requirement. Apple III. “For example, it may make sense to view patents in the aggregate where they all relate to the same technology or where they combine to make a product significantly more valuable. To hold otherwise could lead to perverse situations such as a patentee being unable to obtain an injunction against the infringement of multiple patents covering different—but when combined, all—aspects of the same technology, even though the technology as a whole drives demand for the infringing product.” Id.
Pharmaceutical patents. In Mylan v. Aurobindo, the Federal Circuit affirmed a finding of causal nexus, reasoning that without infringing the plaintiff’s process and compound patents, the defendant would not be able to achieve the promised purity in its ANDA, and thus would not be able to make the product described in its ANDA.
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Design patents. In showing a causal nexus for an injunction based on a design patent, the patentee must make a specific showing that the patented design elements impact customers’ purchasing decisions. Apple III (finding no causal nexus to justify a design patent injunction). Evidence showing the importance of a general design feature of the type covered by a patent is typically insufficient. Id. Conversely, isolated, anecdotal statements about single design elements do not establish that the plaintiff’s broader patented designs are drivers of consumer demand. Id. The required nexus may be easier to show when the patents cover “all views of the patented device,” instead of specific design elements. Apple v. Samsung I (2012) (finding causal nexus where evidence showed that “design mattered … to customers in making tablet purchases,” and where the patentee “claimed all views of the patented device.”)
Addendum (subsequent relevant Federal Circuit cases):
Lost sales:
Lost profits and permanent injunction found appropriate in two-supplier market (TEK Global v. Sealant Systems)