If you bring a patent infringement action, you probably will expect to get monetary damages from the infringer if you prevail. You can read more here about these types of damages, which usually cover reasonable royalties and lost profits. However, damages may not be the only remedy for a patent owner against an infringer. You might worry that you will not get justice for years if your case proceeds through a full trial, during which time the infringer will continue to profit from your efforts. Preliminary injunctions and temporary restraining orders are designed to deal with this situation.
An injunction is an order by a court that requires someone to do something or stop doing something. Outside the patent context, people often seek injunctions in situations that involve intrusions on their privacy or property. If you can show that the defendant likely infringed on a valid patent that you own, you may be able to get an injunction from the judge that orders the defendant to stop the infringement. An injunction is not a substitute for damages, and you still can receive damages for your losses during the period of infringement.
A permanent injunction is the ideal solution, but it can take a long time to obtain. You will need to prevail on the merits of your infringement action before the court will issue a permanent injunction. Sometimes a preliminary injunction is appropriate in situations that are time-sensitive, such that the defendant’s actions could cause serious harm before the matter is fully litigated in a trial. Getting this injunction does not require a full resolution of the case, but it does require showing that the plaintiff is likely to prevail. Preliminary injunctions usually involve briefs submitted by both sides and a hearing in court. These steps take time, so a preliminary injunction may not be good enough if the harm caused by the infringement is serious and imminent.
As an alternative, a patent owner may consider pursuing a temporary restraining order (TRO). These can be granted under Federal Rule of Civil Procedure 65(b) without providing notice to the infringer, which greatly streamlines the process. The patent owner would need to prove specific facts to show that the infringement would cause immediate and irreparable losses before the court would have an opportunity to receive briefs from both sides and conduct a hearing. While Rule 65(b) does not explicitly require a plaintiff to show that they are likely to prevail, they probably would need to make this type of showing.
It is important to remember the “temporary” part of a temporary restraining order. A TRO does not provide a permanent solution. It usually remains in effect only until both sides have presented their positions at a hearing. At that stage, a judge can decide whether to issue a preliminary injunction or simply allow the case to move forward to trial. Getting a TRO is far from automatic in a patent infringement action, and an attorney may be able to advise you on whether it might be appropriate in your case. (Often, if a case is strong enough for a judge to grant a TRO, the plaintiff can reach a favorable settlement with the defendant rather than proceeding formally through the courts.)
