Supreme Court Decision Clarifying Preliminary Injunction Standards

In a few circuits, preliminary injunctions are decided using a sliding scale test: the higher the likelihood of success, the less irreparable harm need be proved, so when success looks like a sure thing, sometimes only the "possibility" of irreparable harm will suffice.

Not any more. In Winter v. NRDC, No. 07-1239 (U.S. Nov. 12, 2008), the Supreme Court rejected the notion that preliminary injunctions may be entered based on a showing of only the "possibility" of irreparable harm. (Slip op. at 12.) Instead, the movant must make a "clear showing" on each of the four relevant factors.

Historically, the circuits' varying preliminary injunction tests often play a role in deciding where a trademark plaintiff should file suit. This decision, however, should -- if the circuits actually cite and follow it -- go a long way to eliminating this as a forum-shopping concern.

5th Circuit's en banc decision on section 1404(a) transfers in In re VW

In this much anticipated decision, the en banc court has directed the E.D. Tex. to transfer this car crash case, which had the barest connection, if any, to that district, to the N.D. Tex., Dallas Division.

For those who don't want to wade through 37 pages of majority and dissenting opinions, it looks to me that this decision will be as relevant to patent cases as the now-vacated prior panel opinion would have been. How the E.D. Tex. judges will APPLY the case, however, will certainly be an interesting question. As with the prior panel's opinion, the en banc decision:

• said that the oft-repeated concept of the "weight given to a plaintiff's choice of forum" simply means that the movant has the burden of proof to show "good cause" for transfer, and no more than that.
• held that under 1404(a), "good cause" for transfer means "when the transferee forum is clearly more convenient, a transfer should be ordered."
• said that a court should NOT completely discount that the documents and physical evidence are located outside the district simply because of "advances in copying technology and information storage."
• re-affirmed the 5th Circuit rule of thumb that where witnesses reside more than 100 miles from the court, the inconvenience to them increases as the distance beyond 100 miles increases.

Perhaps most importantly, the court discounted that the denizens of Marshall may have an interest in the case simply because the product is available there. The en banc court reasoned that such a concept could apply "virtually to any judicial district or division in the United States."