Philips and Thales have been negotiating an agreed upon fair, reasonable, and nondiscriminatory (FRAND) license for standard essential patents (SEPs) that Thales has implemented according to European Telecommunications Standards Institute (ETSI) specifications. After negotiations failed, Philips filed an infringement and declaratory action against Thales and an ITC action seeking an exclusion order. Thales filed a breach of contract counterclaim and declaratory counterclaim for a FRAND rate determination, and it moved for a preliminary injunction barring Philips from pursuing its ITC action. The district court denied Thales’ motion. Thales appeals. The CAFC finds that the district court did not clearly err in determining that Thales’ evidence of harm was conclusory and that Thales failed to meet its burden of establishing likely irreparable harm. Thales’ affidavits stating only that the threat of an ITC exclusion order caused several customers to “voice concerns” and express doubt regarding Thales’ ability to deliver products, and arguments about living under the “cloud on the business” of a potential exclusion order and the potential loss of business that may occur if it loses at the ITC are speculative harms that do not justify the rare and extraordinary relief of a preliminary injunction. Therefore, the CAFC holds that the district court did not abuse its discretion in denying Thales’ motion for a preliminary injunction and affirms.
