Patent Law | Expert Legal Commentary

January 14, 2013

Revision Military v. Balboa Manufacturing: Patent Infringement Preliminary Injunctions Must Use Federal Circuit Law

Revision Military, Inc. v. Balboa Manufacturing Co.

By Tom Zuber and Jeff Zuber of Zuber Lawler & Del Duca

Revision Military v. Balboa Manufacturing: Patent Infringement Preliminary Injunctions Must Use Federal Circuit Law

The Federal Circuit recently clarified that district courts should not employ their own circuit’s standard for a preliminary injunction when dealing with patent infringement cases. In Revision Military, Inc. v. Balboa Manufacturing Co., 2011-1628 (Fed. Cir. Nov. 27, 2012), the Court held that a district court’s use of the Second Circuit’s “heightened standard” for a patent infringement-related preliminary injunction was misplaced and instead, remanded using the Federal Circuit’s own “more likely than not” standard.


Revision Military (“Revision”) designs, manufactures, and sells protective eyewear for law enforcement and military use.  Revision alleges that competitor Balboa Manufacturing (“Balboa”) released protective goggles that infringe on Revision’s design patents.  Revision filed an infringement suit against Balboa and moved for a preliminary injunction to enjoin Balboa from making and selling the new goggles.

The District Court of Vermont denied the preliminary injunction.  The court said that Revision did not meet the Second Circuit’s “heightened standard” of proof of likelihood of success on the merits.

Federal Circuit Mandates the “More Likely Than Not” Standard for Patent-Related Preliminary Injunctions

Generally, a plaintiff seeking a preliminary injunction must establish that she is (1) likely to succeed on the merits; (2) that she is likely to suffer irreparable harm in the absence of preliminary relief; (3) that the balance of equities tips in her favor; and (4) that an injunction is in the public interest.

Within this general framework, the various circuit courts have developed their own standards of the first element of likely to succeed on the merits.  The Second Circuit employs a heightened standard of “clear” or “substantial” likelihood of success on the merits when a party seeks “an injunction that will alter rather than maintain the status quo.” Doninger v. Nehoff, 527 F.3d 41 (2d Cir. 2008).  In this case, the district court applied the heightened standard because Balboa was already offering to sell its new goggles to Revision’s customers, and thus an injunction would alter the status quo for Balboa.

In contrast, the Federal Circuit employs a lower standard of “more likely than not” in determining whether the moving party is likely to succeed on the merits.  On appeal to the Federal Circuit, the Court noted that preliminary injunctions enjoining patent infringement involve issues unique to patent law and are therefore governed by the law of the Federal Circuit.  Hybritech v. Abbot Labs, 849 F.2d 1446, 1451 n.12 (Fed. Cir. 1988).  As this case involved design patent infringement, the Court remanded for a redetermination utilizing the Federal Circuit’s “more likely than not” standard.

Federal Circuit Pushes for Use of Prior Art in the “Ordinary Observer” Test

The Federal Circuit also took issue with the district court’s analysis of the “ordinary observer” test explained in Gorham v. White, 81 U.S. 511 (1871) used in deciding design patent infringement.  That test asks whether an ordinary observer, “giving such attention as a purchaser usually gives,” would consider two designs as substantially the same.  Id. at 528.  The Court took issue with the district court’s lack of use of prior art, which the Court suggested could help establish a frame of reference in comparing designs which are allegedly infringing.  The district court had acknowledged that prior art is sometimes used in the analysis, but declared that this was “not a particularly close case.”  The Court disagreed and remanded, suggesting the use of prior art. 


The Federal Circuit has made it clear to district courts that the proper standard for patent-related preliminary injunctions is the “more likely than not” standard.  Parties involved in patent infringement actions should contact experienced patent counsel to see how Revision may affect your case.

About the Authors

Tom Zuber is a Partner of Zuber Lawler & Del Duca, focusing on intellectual property protection and exploitation.

Jeff Zuber is a Partner of Zuber Lawler & Del Duca, focusing on intellectual property litigation and arbitration.

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Tom Zuber
Jeff Zuber

Companies Mentioned

Balboa Manufacturing Co.

Revision Military, Inc.

Also See:

MDS (Canada) Inc. v. RAD Source Technologies: 11th Circuit Finds Federal Circuit Does Not Have Exclusive Jurisdiction When Patents at Issue in Breach of Contract Claim

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Bowman v. Monsanto Co.: Growing Patented Soybeans for Replanting is Infringement

Gunn, et al., v. Minton: Supreme Court Denies Federal Jurisdiction for Patent-Related Malpractice Suit

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