Vulnerability Or Validity: Which Standard Is Correct?

Law360, New York (December 1, 2008, 12:00 AM EST) -- Everyone agrees that the court grants or denies a preliminary injunction based on four factors: (1) the likelihood of the patentee's success on the merits; (2) irreparable harm if the injunction is not granted; (3) the balance of hardships between the parties; and (4) the public interest.[1]

The patentee must demonstrate that the injunction it seeks should issue.[2] Generally, Federal Circuit precedent has held that an accused infringer may successfully challenge a motion for preliminary injunction by raising a "substantial question" concerning validity, enforceability or infringement.[3]...
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