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E.I. DuPont de Nemours and Company v. Unifrax I LLC

United States District Court, D. Delaware

September 12, 2017

E.I. DUPONT DE NEMOURS AND COMPANY, Plaintiff,
v.
UNIFRAX I LLC, Defendant

          Richard L. Horwitz, David E. Moore, Bindu A. Palapura, Stephanie E. O'Byrne, POTTER ANDERSON & CORROON LLP, Wilmington, Delaware; Mark L. Levine, Christopher D. Landgraff, Christopher R. Hagale, Sharon Desh, BARTLIT BECK HERMAN PALENCHAR & SCOTT LLP, Chicago, Illinois. Attorneys for Plaintiff .

          Frederick L. Cottrell, III, Kelly E. Farnan, Jason J. Rawnsley, Katharine L. Mowery, RICHARDS, LAYTON & FINGER, P.A., Wilmington, Delaware; Joseph G. Curatolo, Salvatore A. Sidoti, CURATOLO SIDOTI CO. L.P.A., Cleveland, Ohio; Jake M. Holdreith, David A. Prange, Alyssa N. Lawson, Brenda L. Joly, Emily E. Niles, George Ashenmacher, ROBINS KAPLAN LLP, Minneapolis, Minnesota. Attorneys for Defendant

          MEMORANDUM OPINION

          ANDREWS, U.S. DISTRICT JUDGE

         This Memorandum Opinion addresses Plaintiff E.I. du Pont de Nemours and Company's Post-Trial Motion for a Permanent Injunction, Supplemental Damages, and Interest. (D.I. 367). I have reviewed the briefing for this motion. (D.I. 368; D.I. 376; D.I. 383). On May 19, 2017, 1 entered judgment for Plaintiff that Defendant's FyreWrap Combi-Film 3G11 infringed U.S.

         Patent No. 8, 607, 926 (the '"926 patent"). (D.I. 346). I also entered judgment for Plaintiff that the '926 patent was not invalid. (Id.).

         I. DISCUSSION

         A. Permanent Injunction

         Courts "may grant injunctions in accordance with the principles of equity to prevent the violation of any right secured by patent, on such terms as the court deems reasonable." 35 U.S.C. § 283. "According to well-established principles of equity, a plaintiff seeking a permanent injunction must satisfy a four-factor test before a court may grant such relief." eBay Inc. v. MercExchange, LLC, 547 U.S. 388, 391 (2006). "A plaintiff must demonstrate: (1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction." Id. "The essential attribute of a patent grant is that it provides a right to exclude competitors from infringing the patent." Acumed LLC v. Stryker Corp., 551 F.3d 1323, 1328 (Fed. Cir. 2008).

         1. Irreparable Injury

         "To satisfy the first eBay factor, the patentee must show that it is irreparably harmed by the infringement." Apple Inc. v. Samsung Elecs. Co., 809 F.3d 633, 639 (Fed. Cir. 2015). "This requires proof that a 'causal nexus relates the alleged harm to the alleged infringement.'" Id. "This just means that there must be proof that the infringement causes the harm." Id. "Where two companies are in competition against one another, the patentee suffers the harm-often irreparable -of being forced to compete against products that incorporate and infringe its own patented inventions." Douglas Dynamics, LLC v. Buyers Prods. Co., l\l F.3d 1336, 1345 (Fed. Cir. 2013).

         Defendant's predecessor Combi-Film 396 product was dissatisfactory to Boeing. (Tr. 286:7-24). There is evidence that the predecessor product would not have qualified under Boeing's new specification. (Tr. 946:20-947:4, 992:15-24, 847:12-22). Defendant's 3G11 product uses Plaintiffs patented flame barrier laminate design to qualify for this specification and compete in this market. (Tr. 747:16-748:3). Defendant is Plaintiffs only competitor in Boeing's flame barrier laminate market. (Tr. 1500:10-16). Plaintiff projected that its Nomex XF would have sales of $32 million in 2013 to 2015. (Tr. 193:4-194:9). Defendant's presence in the market directly reduced Plaintiffs sales. (See, e.g., Tr. 776:9-19, 199:9-200:4; PTX-259; PTX-388).

         This reduction in sales reflects a causal nexus relating the harm to the infringement. Had Defendant not infringed Plaintiffs design, Defendant would not have qualified its 3G11 product and would not have been able to compete in the flame barrier market under Boeing's new specification. Defendant thus would not have cut into sales of Nomex XF. Plaintiff and Defendant are direct competitors. There is sufficient evidence establishing irreparable harm to Plaintiff. See Robert Bosch LLC v. Pylon Mfg. Corp., 659 F.3d 1142, 1152 (Fed. Cir. 2011).

         Defendant notes that Defendant took the 3G11 product off the market and no longer offered it for sale as of May 19, 2017. (D.I. 377 ¶ 4). This is not a persuasive reason to deny the request for an injunction. See, e.g., Cartier, Inc. v. Four Star Jewelry Creations, Inc., 2003 WL 21056809, at *6 (S.D.N.Y.May 8, 2003) ("[A] bare promise by a party in the course of litigation to discontinue past or ongoing misconduct does not justify denial of injunctive relief, since such unilateral action hardly suffices to ensure that the party will not, in the future, reverse course and resume its challenged activities."). Defendant fails to "make an affirmative showing that continuing infringement was, practically speaking, nearly impossible." Lyons P'ship, L.P. v. Morris Costumes, Inc., 243 F.3d 789, 800 (4th Cir. 2001).

         2. Remedies ...


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