Balance of Hardships

A patentee must establish that the balance of hardships weighs in its favor.

To satisfy the third eBay factor, the patentee must show that the balance of hardships weighs in its favor. 547 U.S. at 391, 126 S.Ct. 1837. This factor assesses the relative effect of granting or denying an injunction on the parties.

— Apple Inc. v. Samsung Electronics Co., Ltd., 809 F. 3d 633, 644–645 (Fed. Cir. 2015).

A number of factors may weigh on the question of balance of hardships including parties sizes, products, and revenue sources.

[T]he district court properly considered several factors [...including] the parties' sizes, products, and revenue sources.

— i4i Ltd. Partnership v. Microsoft Corp., 598 F. 3d 831, 862–63 (Fed. Cir. 2010).

An infringer’s reliance on the patentee’s delay in bringing suit may weigh against the patentee in considering the balance of hardships.

Many of the facts relevant to laches, such as the accused infringer's reliance on the patentee's delay, fall under the balance of the hardships factor.

— SCA Hygiene Prods. V. First Quality Baby prods., 807 F. 3d 1311, 1331 (Fed. Cir. 2015).

Mere delay in bringing suit is not enough to forestall an injunction.

Mere delay or acquiescence cannot defeat the remedy by injunction in support of the legal right, unless it has been continued so long and under such circumstances as to defeat the right itself.

— Menendez v. Holt, 128 US 514, 523 (S. Ct. 1888); SCA Hygiene Prods. V. First Quality Baby prods., 807 F. 3d 1311, 1331 (Fed. Cir. 2015).

An infringer’s ex ante decision to build a business on an infringing product is not an ex post defense against injunction.

As we have noted, one who elects to build a business on a product found to infringe cannot be heard to complain if an injunction against continuing infringement destroys the business so elected.

— Merial Ltd. v. Cipla Ltd., 681 F. 3d 1283, 1306 (Fed. Cir. 2012).