Case: 21-2106 Document: 79 Page: 1 Filed: 07/13/2022

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: 2 Filed: 07/13/2022

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Decided: July 13, 2022 ______________________

ELEY THOMPSON, Foley & Lardner LLP, Chicago, IL, argued for plaintiff-counter defendant-appellee and coun- ter defendant-appellee. Also represented by KEVIN M. LITTMAN, LUCAS I. SILVA, Boston, MA.

PAUL ZEINEDDIN, Axinn Veltrop & Harkrider LLP, Washington, DC, argued for defendant-counterclaimant- appellant. Also represented by MICHAEL L. KEELEY; THOMAS K. HEDEMANN, Hartford, CT; ERIC ALAN KRAUSE, JEANNINE YOO 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 FLEMING, TIMOTHY D. SYRETT, Boston, MA.

JOHN ARPIO JURATA, JR., Orrick, Herrington & Sutcliffe LLP, Washington, DC, for amicus curiae American Honda Motor Co., Inc.

DAVID W. LONG, 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. KORNICZKY.

ERIC F. CITRON, Goldstein & Russell, P.C., Bethesda, MD, for amicus curiae Qualcomm Incorporated. ______________________ Case: 21-2106 Document: 79 Page: 3 Filed: 07/13/2022

KONINKLIJKE PHILIPS N.V. v. THALES USA, INC. 3

Before MOORE, Chief Judge, DYK 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). DISCUSSION 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. Case: 21-2106 Document: 79 Page: 4 Filed: 07/13/2022

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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 Case: 21-2106 Document: 79 Page: 5 Filed: 07/13/2022

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. Case: 21-2106 Document: 79 Page: 6 Filed: 07/13/2022

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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.