United States Court of Appeals
for the Federal Circuit
______________________
AEVOE CORP.,
Plaintiff-Appellee,
v.
AE TECH CO., LTD., S&F CORPORATION (doing
business as SF Planet Company and SF Planet
Corporation), AND GREATSHIELD, INC.,
Defendants-Appellants.
______________________
2012-1422
______________________
Appeal from the United States District Court for the
District of Nevada in No. 12-CV-0053, Judge Gloria M.
Navarro.
______________________
Decided: August 29, 2013
______________________
DAVID SPENCER BLOCH, Winston & Strawn LLP, of
San Francisco, California and STEFFEN N. JOHNSON, of
Washington, DC, argued for plaintiff-appellee. With them
on the brief were JENNIFER A. GOLINVEAUX, K. JOON OH
and ELISABETH A. DERBY, of San Francisco, California.
LYNN J. ALSTADT, Buchanan Ingersoll & Rooney PC,
of Pittsburgh, Pennsylvania, argued for defendants-
appellants. With him on the brief was STEVEN D.
CZAJKOWSKI.
______________________
2 AEVOE CORP. v. AE TECH CO., LTD.
Before RADER, Chief Judge, LOURIE, and O’MALLEY,
Circuit Judges.
O’MALLEY, Circuit Judge.
AE Tech Co., Ltd. (“AE Tech”), S&F Corporation, and
GreatShield, Inc. 1 appeal the district court’s preliminary
injunction granted in favor of Aevoe Corporation (“Aevoe”)
barring particular products from the market. The district
court originally granted the injunction in January 2012.
AE Tech did not appeal from that order. In May 2012, the
district court concluded that the Appellants had violated
the injunction with an alleged redesign. At that time, the
court altered certain language in the injunction. Appel-
lants now argue that the court modified the injunction in
May 2012 and that their appeal from that modification is
timely. Because the district court merely clarified the
scope of the original injunction in its May 2012 order, we
find there was no modification that substantially changed
the legal relationship between the parties. Based on this
finding, we dismiss this appeal for lack of jurisdiction.
I. BACKGROUND
Aevoe is the assignee of U.S. Patent No. 8,044,942
(“the ’942 patent”), which is directed to a touch screen
protector for electronic devices. The ’942 patent generally
discloses a touch screen protector for use on hand-held
electronic devices that can be easily attached and re-
moved without trapping air bubbles or dust. ’942 patent,
col. 1, ll. 10–55. The claimed touch screen protector
includes a plastic film and a spacer. Id., col. 8, ll. 28–48.
The spacer surrounds the thin plastic film and is sized to
fit the particular device. The spacer must be thick enough
to ensure that the plastic film does not make direct con-
tact with the hand-held device screen, but thin enough
1 S&F Corporation and GreatShield, Inc. together
will be referred to as the “S&F Defendants.”
AEVOE CORP. v. AE TECH CO., LTD. 3
such that a user can still easily make contact with the
touch screen when pressing down on the film. Id. The
spacer also includes an adhesive to allow the protector to
be attached to and removed from the device. Id. A pre-
ferred embodiment is depicted in the ’942 patent:
Id., Fig. 1C. The ’942 patent has one independent claim
and fourteen (14) dependent claims. Claim 1 is the sole
independent claim:
1. A touch screen protector for a hand held elec-
tronic device having a front face that includes a
touch screen portion and an outer perimeter com-
prising:
a plastic film having front and back sides, an out-
er perimeter that corresponds to that of the de-
vice, and a transparent window that corresponds
in size to the touch screen portion; and
a spacer provided along the outer perimeter of the
plastic film continuously surrounding the trans-
parent window, having a thickness sufficient to
space the plastic film near but not in contact with
the touch screen portion, and an exposed adhesive
for removably mounting the protector upon the
outer perimeter of the front face to form an en-
closed air space between the transparent window
4 AEVOE CORP. v. AE TECH CO., LTD.
of the plastic film, the spacer and the touch screen
portion of the device;
wherein the window can be pressed against the
touch screen portion for operation of the electronic
device while preventing direct contact of a user's
fingers with the touch screen portion and without
producing visible interference patterns during
use.
Id., col. 8, ll. 28–48.
On December 7, 2011, Aevoe sued AE Tech in the Dis-
trict Court for the Northern District of California, alleging
that AE Tech’s touch screen products, including its APlus
Shield Anti-Glare product, infringed the ’942 patent. See
Aevoe Corp. v. AE Tech Co., 5:11-cv-6164, ECF No. 1 (N.D.
Cal. Dec. 7, 2011). 2 Before AE Tech responded to the
California action, Aevoe learned that AE Tech was mar-
keting the allegedly infringing touch screen products in
Las Vegas at the Consumer Electronics Show. Aevoe
subsequently filed a separate suit in the District Court for
the District of Nevada, alleging that AE Tech was infring-
ing the ’942 patent. See Aevoe Corp. v. AE Tech. Co., 2:12-
cv-53, ECF No. 1 (D. Nev. Jan. 1, 2012). There, Aevoe
requested a temporary restraining order, which the
district court granted, barring AE Tech from selling its
ACase and APlus Shield Anti-Glare products. See Aevoe
Corp., ECF No. 8 (D. Nev. Jan. 12, 2012). The court also
ordered that AE Tech show cause why a preliminary
injunction should not issue. Id. Despite receiving notice
of the restraining and show cause orders, AE Tech did not
answer the complaint, respond, or appear.
After AE Tech failed to respond to the show cause or-
der, the district court issued a preliminary injunction:
2 Aevoe voluntarily dismissed its California suit on
January 25, 2012. See Aevoe Corp. v. AE Tech Co., 5:11-
cv-6164, ECF No. 7 (N.D. Cal. Jan. 25, 2012).
AEVOE CORP. v. AE TECH CO., LTD. 5
IT IS HEREBY ORDERED THAT AE Tech, its
agents, servants, employees, confederates, attor-
neys, and any persons acting in concert or partici-
pation with them, or having knowledge of this
Order by personal service or otherwise be, and
hereby are, preliminarily enjoined from practic-
ing, making, manufacturing, importing, offering
for sale, selling, and/or otherwise using U.S. Pa-
tent No. 8,044,942, or any reproduction, counter-
feit, copy, or colorable imitation of the same, and
from transferring, moving, returning, destroying,
or otherwise disposing of any [AE Tech touch-
screen protectors that meet the ’942 patent claim
limitations], including but not limited to ACase
APlus Shield Anti-Glare products pending a trial
on the merits, AE Tech is hereby given further no-
tice that it shall be deemed to have actual notice
of the issuance and terms of this preliminary in-
junction and that any act by it in violation of any
of the terms hereof may be considered and prose-
cuted as contempt of this Court.
Aevoe Corp., ECF No. 16 (D. Nev. Jan. 24, 2012). The
preliminary injunction finally prompted AE Tech to
respond. On February 7, 2012, AE Tech filed a motion to
reconsider and vacate the preliminary injunction. See
Aevoe Corp., ECF No. 25 (D. Nev. Feb. 7, 2012). AE Tech
contested the grant of the preliminary injunction. Id. It
argued, among other things, that Aevoe was unlikely to
succeed on the merits because the ’942 patent was invalid
and unenforceable. Id. AE Tech also contended that the
preliminary injunction was overbroad because it used
trademark-related words such as “counterfeit” and “color-
able imitation,” that broadened the reach of the injunction
beyond the scope of the patent claims. Id.
The district court treated AE Tech’s motion as a mo-
tion for reconsideration pursuant to Federal Rule of Civil
Procedure 59(e). See Aevoe Corp., ECF No. 43 (D. Nev.
March 7, 2012). In the Ninth Circuit, a Rule 59(e) motion
6 AEVOE CORP. v. AE TECH CO., LTD.
may be granted if: (1) the motion is necessary to correct
manifest errors of law or fact upon which the appealable
order is based; (2) the moving party presents newly dis-
covered or previously unavailable evidence; (3) the motion
is necessary to prevent manifest injustice; or (4) there is
an intervening change of law. See Turner v. Burlington
Northern Santa Fe R. Co., 338 F.3d 1058, 1063 (9th Cir.
2003) (citations omitted).
As such, the court analyzed whether it had committed
clear error in its application of the criteria for determin-
ing whether to grant a preliminary injunction, i.e., likeli-
hood of success on the merits, irreparable injury, balance
of hardships, and the public interest. See Aevoe Corp.,
ECF No. 43 (D. Nev. March 7, 2012). The district court
noted that AE Tech had waived the right to assert inva-
lidity defenses to Aevoe’s request for a preliminary injunc-
tion by not asserting them when given a full and fair
opportunity to do so, and that there was no intervening
change in controlling law. The court then concluded that
it had not committed clear error, denied AE Tech’s motion
to reconsider, and refused to vacate the injunction. Id.
The court, however, noted that Aevoe did not oppose AE
Tech’s request to remove the “counterfeit” and “colorable
imitation” language from the injunction to clarify that the
injunction is no broader than permitted under 35 U.S.C.
§ 271. Id.
After the hearing on AE Tech’s motion for reconsider-
ation, on March 5, 2012, AE Tech informed Aevoe that it
had redesigned its product and was “intending” to sell the
new product with the help of and through the S&F De-
fendants. AE Tech’s redesign consisted of cutting two
“channels” through the mounting adhesive of the accused
devices. Aevoe was able to confirm, however, that AE
Tech began selling the “redesigned” product before the
March 5 notice, that AE Tech was in fact doing so through
the S&F Defendants, and was doing so using the same
product packaging and identification numbers used for
the original allegedly infringing devices. Two days later,
AEVOE CORP. v. AE TECH CO., LTD. 7
on March 7, 2012, the district court issued an order alter-
ing the January 24, 2012 injunction as requested by AE
Tech to remove the “trademark language” (words in
brackets were added by the district court):
IT IS HEREBY ORDERED THAT AE Tech, its
agents, servants, employees, confederates, attor-
neys, and any persons [person] acting in concert
or participation with them, or having knowledge
of this Order by personal service or otherwise be,
and hereby are, preliminarily enjoined [prelimi-
nary enjoyed (sic)] from practicing, making, [us-
ing,] manufacturing, importing, offering for sale,
selling, and/or otherwise using U.S. Patent No.
8,044,942, or any reproduction, counterfeit, copy,
or colorable imitation of the same, and from trans-
ferring, moving, returning, destroying, or other-
wise disposing of any [AE Tech touch-screen
protectors that meet the ’942 patent claim limita-
tions], including but not limited to ACase APlus
Shield Anti-Glare products pending a trial on the
merits[.], AE Tech is hereby given further notice
that it shall be deemed to have actual notice of the
issuance and terms of this preliminary injunction
and that any act by it in violation of any of the
terms hereof may be considered and prosecuted as
contempt of this Court.
Id. AE Tech did not appeal this decision.
On March 14, 2012, Aevoe filed an amended com-
plaint joining the S&F Defendants. See Aevoe Corp., ECF
No. 44 (D. Nev. March 14, 2012). Aevoe previously had
notified the S&F Defendants of the preliminary injunc-
tion, but now sought to join them as defendants. Aevoe
alleged—supported by written confirmation—that the
S&F Defendants sold infringing products obtained from
AE Tech. Id. Shortly thereafter, Aevoe filed a motion
requesting that AE Tech and the S&F Defendants be held
in contempt and sanctioned for willfully disregarding the
8 AEVOE CORP. v. AE TECH CO., LTD.
court’s preliminary injunction. See Aevoe Corp., ECF No.
49 (D. Nev. March 23, 2012).
After examining the redesigned AE Tech product, the
district court found that the added channels were a non-
functional and trivial attempt to design around the ’942
patent. See Aevoe Corp., ECF No. 65 (D. Nev. May 2,
2012). The court found that the redesigned AE Tech
screen protector was not more than colorably different
than the enjoined products. Id. Accordingly, the court
held all defendants in contempt and concluded that
sanctions against AE Tech were appropriate. 3 Id. The
court also changed the language of the preliminary in-
junction by adding back the “colorable imitation” phrase.
See Aevoe Corp., ECF No. 66 (D. Nev. May 2, 2012). The
court also explicitly named the S&F Defendants as en-
joined parties. Id. The injunction was altered as follows
(words in brackets were added by the district court):
IT IS HEREBY ORDERED THAT [that] AE Tech,
its [Co., Ltd., GreatShield, Inc., S&F Corporation,
their] agents, servants, employees, confederates,
attorneys, and any person[persons] acting in con-
cert or participation with them, or having
knowledge of this Order by personal service or
otherwise be, and hereby are preliminary en
joyed[preliminarily enjoined] from [practicing,]
making, using, manufacturing, importing, offering
for sale, selling, and/or otherwise using U.S. Pa-
tent No. 8,044,942[, or a colorable imitation of the
same], and from transferring, moving, returning,
destroying, or otherwise disposing of any Infring-
ing Goods, including[,] but not limited to[,] ACase
3 The court concluded that, while the S&F Defend-
ants were subject to and had violated the injunction,
sanctions against those defendants were not appropriate
because they were not named parties at the time of the
contempt. See Joint Appendix at 195–97.
AEVOE CORP. v. AE TECH CO., LTD. 9
APlus Shield Anti-Glare products[, original and
redesigned, and the GreatShield EZseal Plus
100% Bubble Free Screen Protector,] pending a
trial on the merits.
Id. The district court deferred consideration of the meas-
ure of sanctions to be imposed on AE Tech pending dis-
covery regarding the scope of its sales of the redesigned
product. AE Tech then filed this appeal.
II. DISCUSSION
“It is axiomatic that the initial inquiry in any appeal
is whether the court to which appeal is taken has jurisdic-
tion to hear the appeal.” Entegris, Inc. v. Pall Corp., 490
F.3d 1340, 1343 (Fed. Cir. 2007) (quoting Woodward v.
Sage Prods., Inc., 818 F.2d 841, 844 (Fed. Cir. 1987)). We
are therefore obligated to determine whether we have
jurisdiction over this appeal.
The substance of Appellants’ briefing focuses on the
merits of the district court’s contempt order, not its grant
of the preliminary injunction. For example, while Appel-
lants contest the infringement and claim construction
findings contained in the district court’s contempt order,
it is clear that the court made those findings in the order
holding AE Tech and the S&F Defendants in contempt for
violation of the injunction. A contempt order interpreting
or enforcing an injunction, however, is generally not
appealable until final judgment. Id. at 1344–48; see also
S.E.C. v. Hickey, 322 F.3d 1123, 1127 (9th Cir. 2003)
(“Orders of civil contempt entered against a party during
the course of a pending civil action are not appealable
until final judgment.”). This is particularly so where no
sanction had yet been imposed for that contempt and
proceedings with respect to that question remained ongo-
ing at the time the appeal before us was filed. Our focus
will remain on the injunction, therefore, and not the
district court’s contempt order.
AE Tech and the S&F Defendants contend that the
district court erred in its May 2, 2012 order expressly
10 AEVOE CORP. v. AE TECH CO., LTD.
enjoining the sale of AE Tech’s “redesigned” screen pro-
tector—including the GreatShield EZseal—and that we
have jurisdiction over that interlocutory order under 28
U.S.C. § 1292(a)(1). The district court, however, issued its
original preliminary injunction on January 24, 2012, and
AE Tech did not appeal the injunction until May 2012.
Under Federal Rule of Appellate Procedure 4(a)(1), any
appeal was to have been filed within thirty (30) days of
the court’s grant of the original January injunction. Fed.
R. App. P. 4(a)(1) (“In a civil case . . . the notice of ap-
peal . . . must be filed with the district clerk within 30
days after entry of judgment or order appealed from.”).
Despite the passage of well more than thirty (30) days,
however, AE Tech argues that its appeal is timely because
the district court modified the January injunction or
granted a new injunction in May 2012; AE Tech claims
that its interlocutory appeal derives from the modifica-
tion, and not the original order from which it unquestion-
ably did not appeal. The S&F Defendants also argue that
their right to appeal flows from the May 2012 order
because the injunction did not identify them by name
until that order. We disagree on both points. 4
4 Aevoe previously moved to dismiss this appeal as-
serting that this court does not have jurisdiction under 28
U.S.C. § 1292(a)(1) because the district court did not
modify the preliminary injunction. Given the limited
record at that stage of the proceedings, that motion was
denied. After a review of the complete record on appeal
and with the added benefit of oral argument, we agree
that the district court did not, in fact, modify the prelimi-
nary injunction issued in January 2012. Because the
district court merely clarified its original injunction, it is
clear that AE Tech’s appeal actually is directed at the
ruling finding it in contempt of the original injunction, a
ruling over which we do not have jurisdiction at this point
in time.
AEVOE CORP. v. AE TECH CO., LTD. 11
This court applies its “own law and not the law of the
regional circuit to issues concerning our jurisdic-
tion.” Ultra-Precision Mfg. Ltd. v. Ford Motor Co., 338
F.3d 1353, 1356 (Fed. Cir. 2003); see also Int’l Elec. Tech.
Corp. v. Hughes Aircraft Co., 476 F.3d 1329, 1330 (Fed.
Cir. 2007) (“We apply our own law, rather than regional
circuit law, to questions relating to our own appellate
jurisdiction.”). The grant, denial, or modification of a
preliminary injunction, however, is not unique to patent
law, so this court applies the law of the regional circuit
when reviewing and interpreting such a decision. See
Abbott Labs. v. Sandoz, Inc., 544 F.3d 1341, 1367 (Fed.
Cir. 2008) (citing Mikohn Gaming Corp. v. Acres Gaming,
Inc., 164 F.3d 891, 894 (Fed. Cir. 1998)). Accordingly, we
apply the law of the regional circuit to determine whether
an injunction has been modified. If the injunction has
been modified under regional circuit law, we may then
exercise appellate jurisdiction under 28 U.S.C. §§ 1292(c)
and (a). See Entegris Inc., 490 F.3d at 1344–45.
We therefore apply Ninth Circuit law, which states
that “[w]hether an order modifies an existing injunction
rather than merely interprets it depends on whether it
substantially alters the legal relations of the parties.”
Cunningham v. David Special Commitment Ctr., 158 F.3d
1035, 1037 (9th Cir. 1998) (citing Public Serv. Co. of
Colorado v. Batt, 67 F.3d 234, 236–37 (9th Cir. 1995)).
Determination of whether an order alters the legal rela-
tionship between the parties requires viewing the sub-
stance of the order. See Credit Suisse First Boston Corp.
v. Grunwald, 400 F.3d 1119, 1124–25 (9th Cir. 2005); see
also Entegris, Inc., 490 F.3d at 1344–45.
The district court twice altered the language of the in-
junction, once in March and again in May 2012. To
understand how the injunction language evolved, we
analyze each iteration to determine whether any of the
changes actually altered the legal relationship between
the parties. The January 2012 injunction was directed at
AE Tech, any person acting in concert or participation
12 AEVOE CORP. v. AE TECH CO., LTD.
with AE Tech, or any person having knowledge of the
order. The injunction barred those parties from “practic-
ing, making, manufacturing, importing, offering for sale,
selling, and/or otherwise using” the ’942 patent, or any
counterfeit or colorable imitation of the same. Aevoe
Corp., ECF No. 16 (D. Nev. Jan. 24, 2012).
When AE Tech finally appeared in this case and re-
quested that the district court reconsider the grant of the
injunction, it argued that the words “counterfeit” and
“colorable imitation” were only appropriate when enforc-
ing trademark rights, not patent rights. See Aevoe Corp.,
ECF No. 43 (D. Nev. March 7, 2012). Based on that
reasoning, Aevoe did not oppose the request to remove
this language, and the district court excised that language
from the injunction with the understanding that it was
irrelevant trademark language. Id. After the contempt
hearing, the district court again altered the language of
the injunction. The district court reinserted the “colorable
imitation” language, included reference to the redesigned
GreatShield product in the injunction, and explicitly
added the S&F Defendants as enjoined parties. The
operative question, therefore, is whether these changes
amounted to a modification of the original injunction
which, in effect, would reset the time for appeal of the
injunction. We address each issue in turn.
First, we must determine whether we have jurisdic-
tion over AE Tech’s appeal. That inquiry requires us to
consider whether the district court modified the injunc-
tion as to AE Tech by reinserting the “colorable imitation”
language after finding the defendants in contempt and
explicitly adding the GreatShield “redesign” to the injunc-
tion. AE Tech appears to have been disingenuous, at best,
when it argued for removal of the subject language during
the February 2012 hearing while failing to inform the
court that it already had redesigned the allegedly infring-
ing touch screen protector. Motivations aside, however,
for reasons explained below, we find that the removal and
return of that language effected no substantive change
AEVOE CORP. v. AE TECH CO., LTD. 13
and did not alter the legal relationship between the
parties. For the same reasons, moreover, we find that an
express reference to the redesign had no substantive
effect on the scope of the injunction.
As this court held in TiVo Inc. v. Echostar Corp., 646
F.3d 869 (Fed. Cir. 2011) (en banc), when determining
whether a redesigned product falls under the strictures of
an existing injunction, the primary question is whether
the “new” product is “colorably different” from the old
product. 646 F.3d at 882. In other words, whether a
redesigned product is “colorably different” from, or a
“colorable imitation” of, the previously enjoined products
is directly relevant to the contempt standard in patent
law. While AE Tech convinced the district court to excise
that language, along with the “counterfeit” language, the
legal relationship between the parties did not change.
Put simply, whether “colorable imitations” were explicitly
mentioned in the injunction language or not, such imita-
tions fell within its scope; the district court was obligated
to apply the colorable differences test in the contempt
proceeding. See id. at 882–83. Thus, the legal relation-
ship between the parties was in no way altered by the
court’s changes to the injunction language. Neither the
excision and addition of the “colorable imitation” language
nor the explicit description of the actual redesign amount
to a modification of the preliminary injunction upon which
this court could predicate jurisdiction.
“[T]he distinction between an order interpreting an
injunction and one modifying an injunction is not always
clear, [but it] defines the boundary of appellate jurisdic-
tion under” § 1292. Entegris, 490 F.3d at 1345 (quoting
Motorola, Inc. v. Computer Displays, Int’l, Inc., 739 F.2d
1149, 1155 (7th Cir. 1984)). At AE Tech’s urging, the
district court first clarified that the preliminary injunc-
tion was meant to only bar activities described in 35
U.S.C. § 271. Later, the district court further clarified the
scope of the injunction by describing the redesigned
product by name. The district court also, in response to
14 AEVOE CORP. v. AE TECH CO., LTD.
AE Tech’s earlier behavior, reinserted the “colorable
imitation” language to make clear the implicit principle
that products that are no more than “colorably different”
than the enjoined products also fall within the purview of
an injunction against infringing activity under § 271.
None of these changes, however, altered the legal rela-
tionship between the parties. See Cunningham, 158 F.3d
at 1037. As such, the district court never modified the
injunction such that it would reset AE Tech’s time to
appeal, and, therefore, AE Tech’s appeal is untimely.
Because the district court did not substantively modi-
fy the January 2012 injunction, AE Tech’s appeal derives
from a contempt order which is not an appealable inter-
locutory order. Entegris, Inc., 490 F.3d at 1343. Because
the contempt order is not appealable under 28 U.S.C.
§ 1292(a), this court does not have jurisdiction over AE
Tech’s appeal. 5
We next consider whether the addition of the S&F De-
fendants amounted to a modification of the injunction, or,
in other words, whether it altered substantially the legal
relationship between those parties and Aevoe such that
the S&F Defendants may now appeal the injunction, even
if AE Tech may not. Cunningham, 158 F.3d at 1037.
Though the S&F Defendants were not joined as defend-
ants until March 2012, they had notice of the injunction
within a week of its original issuance in January. On
February 3, 2012, the S&F Defendants: (1) were again
made aware of the injunction; (2) confirmed that they
were distributing products made by AE Tech; and
(3) represented that they would not sell the infringing
products anymore. See Aevoe Corp. v. AE Tech. Co., Ltd.,
5 This court reached the same conclusion on similar
facts in a recent, albeit non-precedential, decision. See In
re Cyclobenzaprine Hydrochloride Extended-Release
Capsule Patent Litigation, 504 F. App’x. 900 (Fed. Cir.
2013).
AEVOE CORP. v. AE TECH CO., LTD. 15
12-1422, Mtn. to Dismiss, ECF No. 15, Ex. 18 (Fed Cir.
June 15, 2012). It is beyond debate that the S&F Defend-
ants thus fell within the express language of the original
injunction, whether or not they were explicitly named as
enjoined parties. The injunction as issued in January
2012 was directed to AE Tech or any party that had notice
of the injunction and was selling the barred products.
Thus, the addition of the S&F Defendants as explicitly
enjoined parties did not substantively modify the lan-
guage of the preliminary injunction because they were
already barred—on the face of the injunction—from
selling the products.
Whether it does so expressly or not, however, a court
generally may not enjoin a non-party to the action before
it. Additive Controls & Measurement Sys., Inc. v. Flowda-
ta, Inc., 96 F.3d 1390, 1394-95 (Fed. Cir. 1996) (citing
Alemite Mfg. Corp. v. Staff, 42 F.2d 832 (2d Cir. 1930)). A
party who acts in concert with an enjoined party, howev-
er, may be subject to the strictures of an injunction. See
Alemite, 42 F.2d at 833. These common law principles are
codified in Rule 65(d)(2)(C), which provides that an in-
junction binds “other persons who are in active concert or
participation with [the parties].” FED. R. CIV. P.
65(d)(2)(C). “Active concert or participation” has been
interpreted to include both aiders and abettors of, and
privies of, an enjoined party. See Golden State Bottling
Co., v. NLRB, 414 U.S. 168, 179-80 (1973) (citing Regal
Knitwear Co. v. N.L.R.B., 324 U.S. 9, 14 (1930)); Additive
Controls, 96 F.3d at 1395; Rockwell Graphics Sys., Inc. v.
Dev Indus., Inc., 91 F.3d 914, 919-20 (7th Cir. 1996).
Such interpretations of “active concert or participation”
recognize “that the objectives of an injunction may be
thwarted by the conduct of parties not specifically named
in its text.” Rockwell Graphics, 91 F.3d at 920.
We find that the S&F Defendants fell within the pur-
view of the original injunction because they were “acting
in concert” with AE Tech in connection with the resale of
16 AEVOE CORP. v. AE TECH CO., LTD.
the redesigned products. Failure to enjoin their conduct
would thwart the purposes of that injunction.
AE Tech sold its allegedly infringing products directly
to the S&F Defendants for distribution who, in turn, sold
the AE Tech products in the marketplace. At the time of
those transactions, the S&F Defendants had notice of the
injunction, had been apprised of which products were
enjoined, and informed Aevoe that they obtained the
barred products solely from AE Tech. See Aevoe Corp. v.
AE Tech Co., Ltd., 12-1422, Mtn. to Dismiss, ECF No. 15,
Ex. 18 (Fed. Cir. June 15, 2012). The S&F Defendants did
not obtain the redesigned product from any entity other
than AE Tech and AE Tech did not distribute those
products through any other entity. Accordingly, by virtue
of their distribution agreement, the S&F Defendants were
“privies” of AE Tech, did not act independently of AE
Tech, and were, thus, subject to the original injunction.
See Golden State Bottling Co. 414 U.S. at 179 (stating
that a purchaser acquiring property with knowledge that
the wrong enjoined remained unremedied is considered in
privity for purposes of Rule 65(d)). 6
For these reasons, the addition of the S&F Defend-
ants also only clarified, and did not modify, the original
injunction because they always fell within the restrictions
of the original injunction. The district court did not
substantially alter the legal relationship between the
6 We note that the S&F Defendants advanced the
same arguments as AE Tech both in the district court and
on appeal. As such, the S&F Defendants’ contention that
they were deprived of an opportunity to present an inde-
pendent validity challenge at the district court rings
hollow. It is telling, moreover, that the S&F Defendants
never argued that their express inclusion in the May 2012
order constituted a modification of the injunction in their
response to Aevoe’s motion to dismiss and only do so in
passing in their merits briefs.
AEVOE CORP. v. AE TECH CO., LTD. 17
parties by explicitly naming the S&F Defendants as
enjoined parties. We conclude, accordingly, that we also
do not have jurisdiction over the S&F Defendants’ appeal
at this time.
DISMISSED