The Court of Appeals for the Federal Circuit reversed the district court's preliminary injunction and stated that the court abused its discretion by enjoining BlephEx from making allegations of patent infringement without a finding of bad faith and with no adequate basis to conclude that allegations of patent infringement would be false or misleading.
"Speech is not to be enjoined lightly. Here, there is not even a finding, let alone a finding supported by evidence and a correct view of the law, that the speech restrained was either false or misleading."
Moreover, the Federal Circuit stated that "the text [of 35 U.S.C. § 287(c)(1)] establishes that, if a medical practitioner’s performance of a medical activity infringes a patent claim, the patentee cannot seek a remedy for such infringement against the practitioner or related health care entity... The act provides immunity to certain infringers, but it does not render them non-infringers. As we have explained, moreover, a medical practitioner’s direct infringement of a method claim may form the basis for a claim of indirect infringement against a medical device manufacturer."
Read the case here.