The nonprecedential decision is SmartSky Networks, LLC v. GoGo Business Aviation, LLC, opinion by Judge Cunningham, joined by Judges Chen and Hughes. The parties are “competitors as business aviation network providers, both offering air-to-ground (‘ATG’) networks that provide broadband in-flight internet connections to aircrafts” (p.2). SmartSky filed suit, “alleging that GoGo’s 5G network infringes claims of” four patents relating “to technology that enables wireless in-flight internet connections” (id.). SmartSky also moved for a preliminary injunction against GoGo’s manufacture, use, sale, or offering to sell its 5G network. The district court denied the motion, concluding that SmartSky had not proven a likelihood of success on the merits or irreparable harm. The Federal Circuit perceives no abuse of discretion and therefore affirms, finding it necessary to consider only the irreparable harm arguments. From the opinion (which, though nonprecedential, does cover a lot of ground on how one might go about trying to prove irreparable harm):
SmartSky has the burden of establishing that it is likely to suffer irreparable harm absent a preliminary injunction and that there is a causal nexus between the alleged infringement and the alleged harm. . . . . Price erosion, loss of goodwill, damage to reputation, and loss of business opportunities are examples of possible grounds for finding irreparable harm. . . .
. . . We find SmartSky’s lost sales arguments unpersuasive as to Gogo’s 5G network. SmartSky itself concedes that Gogo’s 5G network has not been released. . . . Even accepting SmartSky’s argument that the district court should have relied on evidence that Gogo’s accused 5G network has been offered for sale since October 2021, Appellant’s Br. 50, the district court did not abuse its discretion in finding that any lost sales and service revenue through the date of trial is quantifiable because SmartSky’s own expert conceded to this conclusion. . . .
. . . SmartSky has not pointed us to any additional evidence in the record that suggests that any consumers who chose Gogo’s 5G network would have chosen SmartSky’s product rather than, for example, Gogo’s unaccused 4G product or a non-infringing product offered by another provider of in-flight connectivity service. Furthermore, although “the existence of a two-player market may . . . create[] an inference that an infringing sale amounts to a lost sale for the patentee,” Robert Bosch LLC v. Pylon Mfg. Corp., 659 F.3d 1142, 1151 (Fed. Cir. 2011), SmartSky’s argument fails because the district court never made a finding that SmartSky and Gogo are the only two competitors in the relevant market. . . .
SmartSky also argues that the district court erred in deeming its price erosion theory of irreparable harm speculative by ignoring testimony from SmartSky’s president alleging that customers used Gogo’s pricing to negotiate price reductions from SmartSky. Appellant’s Br. 55–56.
We find this argument unpersuasive. In previous cases, we have required concrete evidence of reduced price to find price erosion. . . . Such concrete evidence is not present in the testimony of SmartSky’s president. The cited testimony shows that a few potential customers requested a price decrease in light of Gogo’s 4G network pricing, not that SmartSky lowered its price because of the launch of Gogo’s 5G network. J.A. 9594, 9597–99, 9602–03. Furthermore, SmartSky’s president conceded that SmartSky set its prices before Gogo announced the prices of its 5G network. . . (pp. 6-10).
The court further agrees that SmartSky did not show any irreparable harm to its reputation or goodwill, or “irreparable harm based on past and future lost R&D and investments” (p.12); and that evidence that the two parties are competitors and that customers are “sticky” (tend to stick with the same provider) was insufficient. Evidence, comparable to what has sufficed in other cases, “of the loss of a few important customers is not present in this case” (pp. 13-14).
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