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.