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Five Tips for Winning a Preliminary Injunction in an IP Case

April 27, 2012

Darren Donnelly, partner in the Litigation Group with Fenwick & West, was recently quoted in the Law360 article, "Five Tips for Winning a Preliminary Injunction in an IP Case."

When facing a lengthy intellectual property dispute, the preliminary injunction can represent a fast victory. This might not necessarily be a lasting victory, but one that can provide critical momentum in a case or change the course of a dispute early on.

"The courts view these orders as changing the ordinary path of the universe," said Darren Donnelly, a partner with Fenwick & West LLP. "The world is in the state it is, and for the court to go in there and disrupt that, they need to be convinced they have to do it and that there's no alternative."

One important aspect to a preliminary injunction is ensuring that there is a compelling argument that significant damages may result in the absence of the injunction. This requires specific detail about a client's business and the state of the marketplace.  Donnelly says that this kind of market information can be an intellectual property attorney's best friend when it comes to demonstrating irreparable harm.

"You need some explanation of what's going to be happening in the marketplace, some explanation of how the market is going to change if the injunction is not entered, so that the court's convinced that this unusual remedy is one that it needs to be entered rather than trying to deal with the alternative," he said.

"The themes that you put together for the court as to why a particular set of facts are not amenable to resolution later down the road with money damages — that's where good advocates do their most thinking and have the battles fought and won," he added.