Preliminary Relief Barring Plaintiff’s Enforcement Activity and Takedown Notices Denied

The court denied defendant's motion for a temporary restraining order and preliminary injunction to prohibit plaintiff's enforcement actions, including posting takedown notices with online retailers, because defendant failed to establish a likelihood of success on the merits of its noninfringement and invalidity counterclaims. "⁠[Defendant] provides no evidentiary support of its proposed claim construction to support such a narrow claim construction that would exclude several preferred embodiments. . . . [Defendant] has not provided the Court with any evidence of how a person of ordinary skill in the art would apply the references to the asserted claims to render the claims obvious. . . . [With respect to its invalidity counterclaim based on lack of enablement and written description, Defendant] fails to provide the Court with any indication of how those skilled in the art would read the patent at issue. . . . [With respect to its invalidity counterclaim based on anticipation, Defendant] has provided no evidence regarding when [plaintiff's] first public disclosure or sale of the invention occurred. Instead, [defendant] appears to be relying on an assumption that it will ask for and receive a spoliation instruction from the Court because of alleged destruction of evidence. But [defendant] cannot use this form of speculation to show a reasonable likelihood of success on the merits that the patent is invalid for prior public disclosure."

Blazer v. Chrisman Mill Farms LLC, 5-17-cv-00430 (KYED January 2, 2018, Order) (Reeves, USDJ)