Revision Military, Inc. v. Balboa Mfg. Co., No. 11-1628 (Fed. Cir. 2012)
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Revision and Balboa design, manufacture, and sell protective eyewear. Revision markets its ballistic protective eyewear primarily to military establishments and law enforcement agencies, and to others who require eye protection, such as hunters and range shooters. Revision alleges that Balboa’s new “Bravo” design protective goggles copied and infringes Revision’s “Bullet Ant” goggles covered by two patents. After the infringement suit was filed Revision sought to enjoin Balboa from making and selling the Bravo goggles while the litigation was pending. The district court denied the preliminary injunction. The Federal Circuit vacated, finding that the district court erred in applying the Second Circuit’s heightened standard of proof of likelihood of success on the merits (clear and substantial) likelihood, instead of the Federal Circuit standard for consideration of whether to impose relief. On remand, the district court should employ the design-as-a-whole criterion and the more-likely-than-not standard.
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