Koninklijke Philips N.v. v. Thales Dis Ais USA LLC, Fka Gemalto Iot LLC, Fka Cinterion Wireless Modules Nafta LLC

United States Court of Appeals
for the Federal Circuit
______________________
KONINKLIJKE PHILIPS N.V.,
Plaintiff-Counter Defendant-Appellee
PHILIPS RS NORTH AMERICA LLC,
Counter Defendant-Appellee
v.
THALES DIS AIS USA LLC, FKA GEMALTO IOT
LLC, FKA CINTERION WIRELESS MODULES
NAFTA LLC,
Defendant-Counter Claimant
THALES USA, INC., THALES S.A., CALAMP CORP.,
XIRGO TECHNOLOGIES, LLC, LAIRD
CONNECTIVITY, INC.,
Defendants
THALES DIS AIS DEUTSCHLAND GMBH, FKA
GEMALTO M2M GMBH,
Defendant-Counter Claimant-Appellant
______________________
2021-2106
______________________
Appeal from the United States District Court for the
District of Delaware in No. 1:20-cv-01713-CFC, Chief
Judge Colm F. Connolly.
______________________
Case: 21-2106 Document: 79 Page: 1 Filed: 07/13/2022

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KONINKLIJKE PHILIPS N.V. v. THALES USA, INC. 2
Decided: July 13, 2022
______________________
ELEY T HOMPSON, Foley & Lardner LLP, Chicago, IL,
argued for plaintiff-counter defendant-appellee and coun-
ter defendant-appellee. Also represented by K EVIN M.
L ITTMAN, L UCAS I. SILVA, Boston, MA.
P AUL ZEINEDDIN, Axinn Veltrop & Harkrider LLP,
Washington, DC, argued for defendant-counterclaimant-
appellant. Also represented by MICHAEL L. K EELEY ;
T HOMAS K. HEDEMANN, Hartford, CT; ERIC ALAN K RAUSE,
J EANNINE Y OO SANO, San Francisco, CA.
MARK D. SELWYN, Wilmer Cutler Pickering Hale and
Dorr LLP, Palo Alto, CA, for amicus curiae ACT | The App
Association. Also represented by MARK CHRISTOPHER
F LEMING, T IMOTHY D. SYRETT , Boston, MA.
J OHN ARPIO J URATA , J R., Orrick, Herrington & Sutcliffe
LLP, Washington, DC, for amicus curiae American Honda
Motor Co., Inc.
D AVID W. L ONG, Essential Patent LLC, Oak Hill, VA,
for amici curiae Lars Gustav Brismark, Stefan H. Geyers-
berger, Rudolf J. Peters, Raymond J. Warren, Heinrich
Dirk Weiler.
MATTHEW HOLDER, Sheppard Mullin Richter & Hamp-
ton LLP, San Diego, CA, for amici curiae Continental Au-
tomotive Systems, Inc., u-blox America, Inc. Also
represented by MARTIN BADER, STEPHEN S. K ORNICZKY .
ERIC F. CITRON, Goldstein & Russell, P.C., Bethesda,
MD, for amicus curiae Qualcomm Incorporated.
______________________
Case: 21-2106 Document: 79 Page: 2 Filed: 07/13/2022

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KONINKLIJKE PHILIPS N.V. v. THALES USA, INC. 3
Before M OORE, Chief Judge, D YK and CHEN , Circuit
Judges.
MOORE, Chief Judge.
Thales DIS AIS Deutschland GMBH (Thales) appeals
the United States District Court for the District of Dela-
ware’s denial of its motion for a preliminary injunction en-
joining Koninklijke Philips N.V. (Philips) from seeking an
exclusion order from the International Trade Commission
(ITC). We affirm.
BACKGROUND
Philips and Thales design and manufacture telecom-
munications equipment and related technologies, includ-
ing those related to various generations of wireless
networks. Philips and Thales have been engaged in nego-
tiations over what Philips asserts are standard essential
patents (SEPs) that Thales has implemented according to
European Telecommunications Standards Institute (ETSI)
specifications. After negotiations did not yield an agreed-
upon fair, reasonable, and nondiscriminatory (FRAND) li-
cense for the SEPs, Philips filed an infringement and de-
claratory action against Thales in the District of Delaware
and an ITC action seeking an exclusion order. Thales filed
a breach of contract counterclaim and declaratory counter-
claim 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. Tha-
les appeals. We have jurisdiction under 28 U.S.C. § 1292
(a)(1), (c)(1).
D ISCUSSION
I
We review the grant or denial of a preliminary injunc-
tion under the law of the regional circuit, in this case the
Third Circuit, except for “considerations specific to patent
issues,” which we review under our own body of law.
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KONINKLIJKE PHILIPS N.V. v. THALES USA, INC. 4
Metalcraft of Mayville, Inc. v. The Toro Co., 848 F.3d 1358,
1363 (Fed. Cir. 2017). We and the Third Circuit review the
denial of a preliminary injunction for abuse of discretion.
Id.; Miller v. Mitchell, 598 F.3d 139, 145 (3d Cir. 2010). “An
abuse of discretion may be established by showing that the
court made a clear error of judgment in weighing relevant
factors or exercised its discretion based upon an error of
law or clearly erroneous factual findings.” Novo Nordisk of
N. Am., Inc. v. Genentech, Inc., 77 F.3d 1364, 1367 (Fed.
Cir. 1996).
A decision to grant or deny a motion for a preliminary
injunction is within the discretion of the district court. Id.
To obtain a preliminary injunction, a party must establish
“that [it] is likely to succeed on the merits, that [it] is likely
to suffer irreparable harm in the absence of preliminary
relief, that the balance of equities tips in [its] favor, and
that an injunction is in the public interest.” Luminara
Worldwide, LLC v. Liown Elecs. Co., 814 F.3d 1343, 1352
(Fed. Cir. 2016) (quoting Winter v. Nat. Res. Def. Council,
Inc., 555 U.S. 7, 20 (2008)).
II
Thales argues that the district court erred in conclud-
ing that Thales failed to show it is likely to suffer irrepara-
ble harm from Philips’ ITC action. We disagree.
A party seeking a preliminary injunction must estab-
lish that it is likely to suffer irreparable harm without an
injunction. Winter, 555 U.S. at 22. The mere possibility or
speculation of harm is insufficient. Id. (rejecting the Ninth
Circuit’s possibility standard as “too lenient”). Evidence of
speculative harms, such as customers merely expressing
concern that a potential future ITC exclusion order could
affect Thales’ ability to deliver products down the road, is
insufficient to show a likelihood of irreparable harm. See
Ferring Pharms., Inc. v. Watson Pharms., Inc., 765 F.3d
205, 219 (Fed. Cir. 2014) (holding that declaration assert-
ing that physicians “would be less likely” to prescribe
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KONINKLIJKE PHILIPS N.V. v. THALES USA, INC. 5
movant’s products was too speculative to establish irrepa-
rable harm); Takeda Pharms. U.S.A., Inc. v. Mylan
Pharms. Inc., 967 F.3d 1339, 1349 & n.8 (Fed. Cir. 2020)
(affirming district court’s determination that appellant had
not shown a likelihood of irreparable harm where plaintiff
presented bare assertions that infringing product would re-
sult in price erosion and loss of market share, as well as an
email indicating that one customer had left).
The district court did not clearly err in determining
that Thales’ evidence of harm was conclusory and that it
failed to meet its burden of establishing likely irreparable
harm. Thales did not present any evidence that it lost cus-
tomers, had customers delay purchases, or struggled to ac-
quire new business because of the ongoing ITC
proceedings. Oral Arg. at 3:24–3:52.1 Instead, it presented
affidavits stating only that the threat of an ITC exclusion
order caused several customers to “voice concerns” and ex-
press doubt regarding Thales’ ability to deliver products.
J.A. 857–59, 861–66. And during oral argument, it charac-
terized its alleged harm as 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. Oral
Arg. at 15:22–15:31. This type of speculative harm does
not justify the rare and extraordinary relief of a prelimi-
nary injunction. See Takeda Pharms, 967 F.3d at 1349 &
n.8; cf. Celsis In Vitro, Inc. v. CellzDirect, Inc., 664 F.3d
922, 930 (Fed. Cir. 2012) (affirming district court’s deter-
mination of irreparable harm where movant demonstrated
change in pricing behavior and supported testimony with
specific financial records). Based on the record, the district
court did not clearly err in finding that there was no evi-
dence of likely irreparable harm and thus did not abuse its
1 Available at https://oralarguments.cafc.uscourts.
gov/default.aspx?fl=21-2106_06072022.mp3.
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KONINKLIJKE PHILIPS N.V. v. THALES USA, INC. 6
discretion in holding that Thales was not entitled to a pre-
liminary injunction.
CONCLUSION
For the reasons discussed above, we hold that the dis-
trict court did not abuse its discretion in denying Thales’
motion for a preliminary injunction.
AFFIRMED
Costs
Thales shall bear costs.
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