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Design Patent Case Digest: Revision Military, Inc. v. Balboa Manufacturing Company

  • 02.28.13
  • Tracy-Gene G. Durkin and David K.S. Cornwell
  • Sterne, Kessler, Goldstein & Fox
Plaintiff Revision Military, Inc. sued Balboa Manufacturing Company for infringement of U.S. Design Patents D537,098 and D620,039, entitled “protective goggles” and “goggles,” respectively. Revision makes military-style, protective goggles called Bullet Ant goggles. Balboa makes an allegedly similar pair of goggles called Bravo goggles. Revision filed a motion for a preliminary injunction, asking the court to prohibit Balboa from selling the Bravo goggles until the case could be decided. The court, however, denied Revision’s motion for a preliminary injunction because Revision did not show “clear” and “substantial” evidence of infringement.

In November 2012, The United States Court of Appeals for the Federal Circuit vacated and remanded the denial of motion for the preliminary injunction.  According to the Federal Circuit, a preliminary injunction enjoining patent infringement under 35 U.S.C. § 283 involves substantive matters of patent law and is governed by Federal Circuit law, not regional circuit law. Thus, the Federal Circuit’s lower “more likely than not” to succeed standard should have been applied, not the Second Circuit’s “clear” or “substantial” likelihood of success applied by the district court. 

To read our full analysis, download the attached PDF.

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