BLEPHEX, LLC. v. MYCO INDUSTRIES, INC.

Before: Moore, Schall, and O’Malley. Appeal from the Eastern District of Michigan.

Summary: Conclusory statements about how a skilled artisan would combine embodiments in a prior art reference are insufficient to defeat a preliminary injunction.

BlephEx filed suit against Myco for infringement of one claim of its patent related to treating blepharitis. The district court granted a preliminary injunction enjoining Myco from all domestic sales of its accused product. Myco appealed to the Federal Circuit, challenging the district court’s conclusion that Myco failed to show a substantial question of validity and arguing that the preliminary injunction failed to preserve the status quo between the parties.

The Federal Circuit found no clear error in the district court’s determinations regarding anticipation and obviousness. Myco argued that a reference that disclosed the claim limitations in two separate embodiments may anticipate even if it lacks discussion of the actual combination so long as one skilled in the art would be able to implement the combination. The Federal Circuit rejected this argument, explaining that Myco agreed that the ordinary level of skill in the art was extremely high (a doctorate and several years of experience treating blepharitis), but that Myco only provided supposition about what a skilled artisan would do. The Federal Circuit determined that this was insufficient evidence to show that a skilled artisan would have combined the two embodiments.  Similarly, the Federal Circuit rejected Myco’s single-sentence obviousness argument—which the Federal Circuit noted was so sparse that Myco may have forfeited the argument—as Myco failed to present evidence showing what a skilled artisan would have been motivated to do.

As to Myco’s argument that the district court’s injunction failed to preserve the status quo, the Federal Circuit found that Myco was wrong in asserting that the status quo should be considered as a time before BlephEx’s patent was issued.  Instead, the proper time period for evaluating the status quo was the time that BlephEx’s patent was granted and could be enforced.