By Memorandum Order entered by the Honorable Maryellen Noreika in Vertigo Media, Inc. et al. v. Earbuds Inc., Civil Action No. 21-120-MN (D.Del. October 14, 2021), the Court denied plaintiffs Vertigo Media, Inc. and Remote Media LLC’s motion for preliminary injunction in their action against defendant Earbuds Inc. claiming infringement of several claims of U.S. Patent Nos. 9,549,024 (“the ‘024 Patent”), 10,198,777 (“the ‘777 Patent”), and 10,116,616 (“the ‘616 Patent”).  In denying plaintiffs’ motion for preliminary injunction, the Court found that plaintiffs did not sufficiently demonstrate that they would suffer irreparable harm in the absence of a preliminary injunction and did not meet their burden of proving a likelihood of success on the merits.  Id. at *7-12.

A copy of the Memorandum Order is attached.

A general take away for practitioners from this case is a reminder that a preliminary injunction is an “extraordinary remedy” that will not be routinely granted in the District of Delaware.  A preliminary injunction will be granted only when the moving party shows (1) a likelihood of success on the merits; (2) irreparable harm if an injunction is not granted; (3) the balance of equities tips in favor of the moving party; and (4) an injunction is in the public interest.  The Court cannot and will not grant a preliminary injunction unless the moving party makes a clear showing of irreparable harm and likelihood of success on the merits.  To make a “clear showing”, the moving party has to put forth evidence supporting its claims.  Unverified allegations in the complaint and/or attorney argument in briefs or elsewhere, unsupported by sworn affidavits or testimony, clearly will not suffice.  Also, if the alleged damages can be quantified and/or fully compensated by an award of money damages, more likely than not there will be no finding of “irreparable” harm.