Edge Systems LLC v. Aguila

NOTE: This disposition is nonprecedential.

United States Court of Appeals
for the Federal Circuit
______________________

EDGE SYSTEMS LLC, A CALIFORNIA LIMITED
LIABILITY COMPANY, AXIA MEDSCIENCES, A
DELAWARE LIMITED LIABILITY COMPANY,
Plaintiffs-Appellees

v.

RAFAEL NEWTON AGUILA, AKA RALPH AGUILA,
DBA HYDRADERMABRASION SYSTEMS,
Defendant-Appellant
______________________

2015-1507
______________________

Appeal from the United States District Court for the
Southern District of Florida in No. 1:14-cv-24517-KMM,
Judge K. Michael Moore.
______________________

Decided: December 21, 2015
______________________

BRENTON R. BABCOK, Knobbe, Martens, Olson & Bear,
LLP, Irvine, CA, for appellees. Also represented by ALI S.
RAZAI.

RAFAEL NEWTON AGUILA, Rottenburg am Neckar,
72108, Germany, pro se.
2 EDGE SYS. LLC v. AGUILA

______________________
Before PROST, Chief Judge, LOURIE and WALLACH, Circuit
Judges.
PER CURIAM.
Appellant Rafael Newton Aguila (“Mr. Aguila”) d/b/a
Hydradermabrasion Systems appeals the decision of the
United States District Court for the Southern District of
Florida granting a preliminary injunction to Edge Sys-
tems LLC (“Edge”) and Axia Medsciences LLC (“Axia”)
(together, “Appellees”) to enjoin Mr. Aguila from infring-
ing upon their trademarks and trade dress and from
infringing U.S. Patent No. 6,299,620 (“the ’620 patent”)
that covers an integral component of Appellees’ machine.
See Edge Sys. LLC v. Aguila, No. 14-24517-CIV-
MOORE/MCALILEY (S.D. Fla. Feb. 24, 2015) (Prelimi-
nary Injunction Order) (Appellees’ Suppl. App. 34–36). 1
For the reasons set forth below, we affirm.
BACKGROUND
I. Products at Issue
Edge manufactures and sells a hydradermabrasion
machine marketed as HydraFacial MD. “This machine
utilizes a ‘wet system’ that exfoliates facial skin tissue by
using an abrasive tip in combination with the application
of serums, followed by a vacuum source to extract dead
skin cells.” Appellees’ Suppl. App. 2. This machine
“incorporates technology . . . claimed in six U.S. patents
owned by [] Axia and exclusively licensed to Edge.” Id.
Mr. Aguila “sells a hydradermabrasion machine
known as HydraDerm MD or Hydradermabrasion MD.”

1 Appellees filed a Supplemental Appendix because
“Appellant declined to cooperate with Appellees to pre-
pare a Joint Appendix.” Appellees’ Br. 2 n.1.
EDGE SYS. LLC v. AGUILA 3

Id. Mr. Aguila’s machine “incorporates the use of serums
that have the same or very similar names as the serums
used in [Edge’s machines], and [Mr. Aguila] sells his
machines using the same name as [] Edge—‘Edge Sys-
tems’—and the same logo that . . . Edge uses.” Id.
II. The ’620 Patent
Edge’s HydraFacial MD incorporates technology from,
inter alia, the ’620 patent. Axia owns the ’620 patent,
which is entitled “Instruments and Techniques for Induc-
ing Neocollagenesis in Skin Treatments.”
Independent claim 1 is the only claim in dispute, it re-
cites:
A system for treating surface layers of a patient’s
skin, comprising:
(a) an instrument body with a distal working end
for engaging a skin surface;
(b) a skin interface portion of the working end
comprising an abrasive fragment composition se-
cured thereto;
(c) at least one inflow aperture in said skin inter-
face in fluid communication with a fluid reservoir;
and
(d) at least one outflow aperture in said skin inter-
face in communication with a negative pressuriza-
tion source.
’620 patent col. 9 ll. 54–63.
III. Proceedings
In November 2014, Appellees filed a complaint
against Mr. Aguila alleging, inter alia, patent, trademark,
and trade dress infringement. The next month, Appellees’
Emergency Motion for Ex Parte Temporary Restraining
Order and Order to Show Cause Regarding Preliminary
4 EDGE SYS. LLC v. AGUILA

Injunction was granted. The district court referred con-
sideration of Appellees’ Motion for Preliminary Injunction
to Magistrate Judge Chris McAliley, who later held an
evidentiary hearing on the matter.
In January 2015, Mr. Aguila filed a Motion to Dismiss
under Rule 12(b)(1) of the Federal Rules of Civil Proce-
dure, asserting lack of jurisdiction due to forum non
conveniens, among other things. Edge Sys. LLC v. Aguila,
No. 14-24517-CIV-MOORE/MCALILEY (S.D. Fla. Jan.
29, 2015) (Magistrate Judge’s Report and Recommenda-
tions on Motion for Preliminary Injunction) (Appellees’
Suppl. App. 1–33). Later that month, while Mr. Aguila’s
Motion to Dismiss remained pending, the Magistrate
Judge issued a Report and Recommendation on Appellees’
Motion, recommending the district court grant the prelim-
inary injunction. Mr. Aguila filed Objections to the Re-
port and Recommendation in February 2015. In
consideration of Mr. Aguila’s objections, the district court
conducted a de novo review of the record and determined
the Magistrate Judge’s factual findings were supported by
the record and ultimately adopted in full the Report and
Recommendation. The district court subsequently grant-
ed Appellees’ Motion for Preliminary Injunction.
In March 2015, Mr. Aguila filed a Notice of Interlocu-
tory Appeal regarding the Order Adopting Report and
Recommendations and Granting the Preliminary Injunc-
tion. In June 2015, the district court denied Mr. Aguila’s
12(b)(1) Motion to Dismiss for lack of jurisdiction due to
forum non conveniens.
We have jurisdiction to review the district court’s
grant of a preliminary injunction under 28 U.S.C.
§ 1292(a)(1), (c)(1) (2012).
DISCUSSION
Mr. Aguila argues the district court erred: (1) in not
dismissing the case under forum non conveniens; (2) in
EDGE SYS. LLC v. AGUILA 5

granting a preliminary injunction for patent infringe-
ment; (3) in granting a preliminary injunction for trade-
mark infringement; and (4) in granting a preliminary
injunction for trade dress infringement. We address each
argument in turn.
I. The Issue of Forum Non Conveniens Is Not Properly
Before This Court
“Whether a notice of appeal has adequately presented
an issue to this court is a question of Federal Circuit law.”
Minn. Min. & Mfg. Co. v. Chemque, Inc., 303 F.3d 1294,
1308–09 (Fed. Cir. 2002). Rule 3(c)(1)(B) of the Federal
Rules of Appellate Procedure (“FRAP”) requires the notice
of appeal to “designate the judgment, order, or part there-
of being appealed.” Fed. R. App. P. 3(c)(1)(B). “[T]he
purpose of this requirement is to ensure that the filing
provides sufficient notice to other parties and the courts.”
Smith v. Barry, 502 U.S. 244, 248–49 (1992) (citations
omitted). “[F]ailure to designate the judgment appealed
from under FRAP 3(c)(1)(B) would lead to uncertainty as
to the scope of an appellate decision.” Durr v. Nicholson,
400 F.3d 1375, 1382 (Fed. Cir. 2005). Indeed, the Su-
preme Court has held that, “[a]lthough courts should
construe Rule 3 liberally when determining whether it
has been complied with, noncompliance is fatal to an
appeal.” Smith, 502 U.S. at 248.
Mr. Aguila’s Notice of Appeal stems from the district
court’s grant of a preliminary injunction. The district
court did not take up the issue of forum non conveniens 2

2 Forum non conveniens is “nothing more or less
than a supervening venue provision, permitting displace-
ment of the ordinary rules of venue when, in light of
certain conditions, the trial court thinks that jurisdiction
ought to be declined.” Am. Dredging Co. v. Miller, 510
U.S. 443, 453 (1994). Application of this doctrine is
6 EDGE SYS. LLC v. AGUILA

until after the evidentiary proceeding that ultimately led
to the issuance of the Preliminary Injunction. Compare
Appellees’ Suppl. App. 50 (Docket Entry 97 listing Notice
of Interlocutory Appeal regarding Docket Entry 89 Order
Adopting Report and Recommendations and Docket Entry
90 Preliminary Injunction), with id. at 48 (Docket Entry
77 Motion to Dismiss under Rule 12(b)(1) of the Federal
Rules of Civil Procedure), and id. at 55 (Docket Entry 110
Order denying Docket Entry 77 Motion to Dismiss for
Lack of Jurisdiction).
Even with a liberal construction of the notice re-
quirement in this case, a finding of no jurisdiction to hear
Mr. Aguila’s forum non conveniens argument is warrant-
ed. Mr. Aguila provided notice that the issue on appeal
was the district court’s grant of a preliminary injunction,
not forum non conveniens. Expanding the scope of the
specifically limited interlocutory Notice of Appeal would
be improper. See Durango Assocs., Inc. v. Reflange, Inc.,
912 F.2d 1423, 1425 (Fed. Cir. 1990) (“Durango did not
misdescribe or ‘forget’ to mention the ’246 [patent] issues.
Durango clearly and specifically intended to confine its
notice in 90–1100 only to the ’944 [patent] issues. Duran-
go cannot now expand the scope of its specifically limited
notice of appeal.” (footnote omitted)); cf. Cybersettle, Inc.
v. Nat’l Arbitration Forum, Inc., 243 F. App’x 603, 606
(Fed. Cir. 2007) (unpublished) (“NAF’s reference to the
injunction does not negate its reference to the district
court’s judgment as the subject of appeal, especially given

entrusted to “‘the sound discretion of the trial court. It
may be reversed only when there has been a clear abuse
of discretion; where the court has considered all relevant
public and private interest factors, and where its balanc-
ing of these factors is reasonable, its decision deserves
substantial deference.’” Id. at 455 (quoting Piper Aircraft
Co. v. Reyno, 454 U.S. 235, 257 (1981)).
EDGE SYS. LLC v. AGUILA 7

the principle that notices of appeal are to be liberally
construed.” (internal quotation marks and citation omit-
ted)); see also id. at 606 n.1 (“NAF did not confine its
notice to the propriety of injunctive relief, but instead
designated the district court’s final judgment for appeal
and then added a statement specifically referring to the
injunction.”).
Further, Mr. Aguila has not filed a motion for leave to
amend his Notice of Appeal to include the issue of forum
non conveniens. Accordingly, we do not have jurisdiction
to hear Mr. Aguila’s arguments on matters beyond what
is stated in his Notice of Appeal—i.e., the District Court’s
Order granting a Preliminary Injunction against Mr.
Aguila.
II. The District Court Did Not Abuse Its Discretion in
Granting the Preliminary Injunction
A. Standard of Review
We apply the law of the regional circuit, the Eleventh
Circuit in this instance, when we review the district
court’s grant, denial, or modification of a preliminary
injunction. Aevoe Corp. v. AE Tech Co., 727 F.3d 1375,
1381 (Fed. Cir. 2013) (citation omitted). The Eleventh
Circuit “review[s] a district court’s order granting or
denying a preliminary injunction for abuse of discretion.”
McDonald’s Corp. v. Robertson, 147 F.3d 1301, 1306 (11th
Cir. 1998) (citation omitted). We must affirm the district
court’s decision unless “we at least determine that the
district court has made a ‘clear error of judgment,’ United
States v. Kelly, 888 F.2d 732, 745 (11th Cir. 1989), or has
applied an incorrect legal standard, Cheney v. Anchor
Glass Container Corp., 71 F.3d 848, 849 n.2 (11th Cir.
1996).” SunAmerica Corp. v. Sun Life Assur. Co. of Can.,
77 F.3d 1325, 1333 (11th Cir. 1996).
8 EDGE SYS. LLC v. AGUILA

B. The Winter Factors Support Granting a Preliminary
Injunction for Patent Infringement
A party seeking a preliminary injunction must estab-
lish (1) “he is likely to succeed on the merits”; (2) “he is
likely to suffer irreparable harm in the absence of prelim-
inary relief”; (3) “the balance of equities tips in his favor”;
and (4) “an injunction is in the public interest.” Winter v.
Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008) (cita-
tions omitted). We refer to these considerations as the
Winter Factors and examine them in turn.
Under the first Winter Factor, a patentee “must
demonstrate that it will likely prove infringement of one
or more claims of the patents-in-suit, and that at least one
of those same allegedly infringed claims will also likely
withstand the validity challenges presented by the ac-
cused infringer.” AstraZeneca LP v. Apotex, Inc., 633 F.3d
1042, 1050 (Fed. Cir. 2010) (internal quotation marks and
citation omitted). A court’s patent infringement analysis
involves two steps: (1) “the court determines the scope
and meaning of the asserted claims”; and (2) “the properly
construed claims are compared to the allegedly infringing
device.” Mas-Hamilton Grp. v. LaGard, Inc., 156 F.3d
1206, 1211 (Fed. Cir. 1998) (internal citations omitted).
However, the preliminary injunction “should not issue if
an alleged infringer raises a substantial question regard-
ing either infringement or validity, i.e., the alleged in-
fringer asserts an infringement or invalidity defense that
the patentee has not shown lacks substantial merit.”
AstraZeneca LP, 633 F.3d at 1050 (citation omitted).
Appellees alleged in their Motion for Preliminary
Injunction that Mr. Aguila infringed claim 1 of the ’620
patent. During the preliminary injunction proceedings,
Mr. Aguila did not dispute the meaning of claim 1 nor did
he dispute that his allegedly infringing machines con-
tained every element of claim 1. Appellees’ Suppl. App.
25–26. The Magistrate Judge construed the terms of
EDGE SYS. LLC v. AGUILA 9

claim 1 consistent with their ordinary and customary
meanings. Id. at 25. The Magistrate Judge also deter-
mined Appellees “established the element of infringe-
ment.” Id. at 26. Given this finding, Mr. Aguila has not
raised a substantial question regarding infringement.
The court then turned to the validity of the ’620
patent, which was disputed by Mr. Aguila. Id. He argued
that U.S. Patent No. 6,241,739 (“the ’739 patent”) antici-
pated the ’620 patent; however, Mr. Aguila “offered no
testimony or other evidence to demonstrate how the ’739
[p]atent anticipates the ’620 [p]atent.” Id. at 27; see also
id. (citing Koito Mfg. Co. v. Turn-Key-Tech, LLC, 381 F.3d
1142, 1152 (Fed. Cir. 2004) (failing to articulate how a
prior art reference anticipates the patent in question is
insufficient evidence of invalidity)). The Magistrate
Judge determined Mr. Aguila “failed to rebut the pre-
sumption of patent validity” and Appellees made a “strong
showing that the ’620 [p]atent is valid.” Id.
Mr. Aguila argues the district court erred in reaching
its determination that Appellees were likely to succeed on
the merits. He contends the district court erred: (1)
“legally and factually in concluding that [Mr.] Aguila did
not establish substantial questions of validity that cannot
be characterized as substantially meritless”; (2) “legally
and factually in concluding that [Mr.] Aguila’s accused
products infringed [A]ppellees’ [’620 patent]”; (3) “legally
and factually in concluding that the [A]ppellees’ device is
based on the first claim of the [’620 patent]”; (4) “in ruling
that the [A]ppellees are likely to withstand [Mr.] Aguila’s
obviousness challenge”; and (5) in finding the asserted
claims were not obvious “despite the evidence that a
person of ordinary skill in the art would have . . . modified
a prior art patent to include the . . . inventive feature” and
despite Appellees’ “failure to show any nexus between any
secondary indicia of non-obviousness and the allegedly
inventive feature.” Appellant’s Br. 8–9.
10 EDGE SYS. LLC v. AGUILA

Mr. Aguila did not present Arguments (2)–(5) to the
Magistrate Judge. These arguments are therefore
waived. See Gant v. United States, 417 F.3d 1328, 1332
(Fed. Cir. 2005) (“Arguments not made in the court or
tribunal whose order is under review are normally consid-
ered waived.”). We address Mr. Aguila’s remaining
arguments below.
1. The District Court Did Not Err in Finding Appellees
Were Likely to Prevail on Aguila’s Patent Invalidity
Challenge
Mr. Aguila contends the ’620 patent is anticipated by
the ’739 patent and is therefore invalid. Appellant’s Br.
25–27. Additionally, Mr. Aguila reproduces a claim chart
that compares claim 1 of the ’620 patent to disclosures of
the ’739 patent, emphasizing portions of the ’739 patent’s
disclosure. 3 Id. at 26–27. However, he does not offer any
argument in connection with the claim chart. Mr. Aguila
further asserts that U.S. Patent Nos. 4,378,804 (“the ’804
patent”) and 5,037,431 (“the ’431 patent”) anticipate the
’620 patent as well. Id. at 27. The record, as presented to
this court, does not demonstrate that Mr. Aguila suffi-
ciently developed and presented his ’804 and ’431 patent
validity arguments to the Magistrate Judge. 4 According-

3 Mr. Aguila submitted this exact claim chart to the
district court in his Memorandum in Opposition to Appel-
lees’ Motion for Ex Parte Temporary Restraining Order
and Order to Show Cause Regarding Preliminary Injunc-
tion, Docket Entry 35. Compare Appellant’s Br. 26–27
(claim chart presented to this court), with Appellant’s
Suppl. App. 78–79 (claim chart presented to the district
court).
4 Appellees acknowledge in their brief that Mr.
Aguila argued to the district court that the ’620 patent
was invalid over the ’804 and ’431 patents. See Appellees’
Br. 22. The record evidence submitted to this court
EDGE SYS. LLC v. AGUILA 11

ly, these validity arguments are waived and will not be
considered. See Gant, 417 F.3d at 1332.
Mr. Aguila also asserts the district court erred in
rejecting his ’739 patent validity argument; however, this
argument does not advance any theory explaining how
the district court abused its discretion in rejecting Mr.
Aguila’s invalidity argument. He presented the ’739
patent to the Magistrate Judge, but “offered no testimony
or other evidence” to support his invalidity argument.
Appellees’ Suppl. App. 27. “[A]n alleged infringer who
raises invalidity as an affirmative defense has the ulti-
mate burden of persuasion to prove invalidity by clear

demonstrates Mr. Aguila made conclusory statements
regarding the validity of the ’804 patent in his Memoran-
dum in Opposition to Appellees’ Motion for Ex Parte
Temporary Restraining Order and Order to Show Cause
Regarding Preliminary Injunction. See Appellees’ Suppl.
App. 43 (Docket Entry 35); Appellant’s Suppl. App. 78–79
(excerpt from Docket Entry 35). Except for changing the
name of the party, Mr. Aguila copied these conclusory
arguments into his appeal brief. Compare Appellant’s Br.
27 (anticipation argument presented to this court), with
Appellant’s Suppl. App. 79 (anticipation argument pre-
sented to the district court). However, the record does not
demonstrate the Magistrate Judge considered these
arguments. See Appellees’ Suppl. App. 1–33. Assuming
Appellant’s arguments are not waived for failure to suffi-
ciently develop these arguments below, we find these
arguments are waived for failure to present more than
conclusory arguments on appeal. See SmithKline Bee-
cham Corp. v. Apotex Corp., 439 F.3d 1312, 1320 (Fed.
Cir. 2006) (holding that when “a party includes no devel-
oped argumentation on a point . . . we treat the argument
as waived” (quoting Anderson v. City of Boston, 375 F.3d
71, 91 (1st Cir. 2004)).
12 EDGE SYS. LLC v. AGUILA

and convincing evidence, as well as the initial burden of
going forward with evidence to support its invalidity
allegation.” Titan Tire Corp. v. Case New Holland, Inc.,
566 F.3d 1372, 1376 (Fed. Cir. 2009) (footnote and citation
omitted). “‘[T]estimony concerning anticipation must be
testimony from one skilled in the art and must identify
each claim element, state the witnesses’ interpretation of
the claim element, and explain in detail how each claim
element is disclosed in the prior art reference.’” Koito
Mfg. Co., 381 F.3d at 1152 (quoting Schumer v. Lab.
Comput. Sys., Inc., 308 F.3d 1304, 1315–16 (Fed. Cir.
2002)). Testimony that is “‘merely conclusory’” is insuffi-
cient. Id. (quoting Schumer, 308 F.3d at 1315–16). “It is
not our task, nor is it the task of the district court, to
attempt to interpret confusing or general testimony to
determine whether a case of invalidity has been made
out . . . .” Schumer, 308 F.3d at 1316. “Indeed, to accept
confusing or generalized testimony as evidence of invalidi-
ty is improper.” Id. This is exactly what Mr. Aguila
asked the Magistrate Judge to do and, in turn, asks us to
do. He offered into evidence only the patents themselves,
without any expert testimony or anticipation analysis.
Accordingly, the district court did not abuse its discretion
in finding that Mr. Aguila failed to raise a substantial
question regarding validity.
2. The District Court Did Not Err in Finding Appellees
Were Likely to Prevail on Their Patent Infringement
Claim
Mr. Aguila argues the district court erred: (1) in
“ruling that the [A]ppellees’ handpiece meets every limi-
tation of [c]laim 1 of the [’]620 patent without making any
kind of claim construction analysis”; (2) in “construing
[A]ppellees’ handpiece to contain an ‘abrasive fragment’
when it has no abrasive materials that make contact with
the skin”; and (3) in “relying on the [declaration] of
EDGE SYS. LLC v. AGUILA 13

Lealani Irby[5] for an example of [Mr.] Aguila’s infringing
handpiece (i.e. handle).” Appellant’s Br. 21–22.
The Magistrate Judge did not err in construing terms
in claim 1. Claim 1 was construed “consistent with the
ordinary and customary meaning of the terms used.”
Appellees’ Suppl. App. 25; see Phillips v. AWH Corp., 415
F.3d 1303, 1312 (Fed. Cir. 2005) (en banc). Mr. Aguila’s
additional contentions as to claim construction are irrele-
vant on appeal, as these arguments were not made in the
proceeding below and are therefore waived. See Gant, 417
F.3d at 1332.
Mr. Aguila’s third assertion is also incorrect. The
Magistrate Judge explicitly stated “a court may rely on
affidavits at the preliminary injunction stage if the evi-
dence is ‘appropriate given the character and objectives of
the injunctive proceeding.’” Appellees’ Suppl. App. 3
(quoting Levi-Strauss & Co. v. Sunrise Int’l Trading Inc.,
51 F.3d 982, 984 (11th Cir. 1995)). While the district
court has the authority to consider declarations at the
evidentiary hearing, the Magistrate Judge elected “to not
do so here. The core issue in dispute . . . raise[s] questions
of credibility, which is best evaluated when presented
with live testimony.” Id. As a result, the Magistrate
Judge required live testimony in lieu of affidavits. The
Magistrate Judge explicitly stated he was not relying on
any written declaration, which was within his proscribed
power. Any error alleged by Mr. Aguila regarding the
content of Ms. Irby’s declaration is irrelevant.
C. The Winter Factors Support Granting a Preliminary
Injunction for Trademark Infringement

5 Ms. Irby filed a declaration in support of Appel-
lees’ Motion for Preliminary Injunction. Appellees’ Br. 26
n.5.
14 EDGE SYS. LLC v. AGUILA

Establishing a prima facie case under the Lanham
Act, 15 U.S.C. § 1125(a) (2012), requires a plaintiff to
show “(1) that the plaintiff had enforceable trademark
rights in the mark or name, and (2) that the defendant
made unauthorized use of it ‘such that consumers were
likely to confuse the two.’” Custom Mfg. & Eng’g, Inc. v.
Midway Servs., Inc., 508 F.3d 641, 647–48 (11th Cir.
2007) (quoting Lone Star Steakhouse & Saloon, Inc. v.
Longhorn Steaks, Inc., 106 F.3d 355, 358 (11th Cir.
1997)).
During the preliminary injunction proceedings, Mr.
Aguila did not dispute that his use of Appellees’ marks
was likely to cause confusion. Appellees’ Suppl. App. 16.
Rather, he claimed he was the first to use the trademarks
in dispute and Appellees therefore could not claim owner-
ship over those marks. In order to prevail, Appellees
must “establish their ownership of the trademark by a
preponderance of the evidence.” SM Licensing Corp. v.
U.S. Med. Care Holdings, LLC, No. 07-20293-CIV, 2007
WL 2051009, at * 9 (S.D. Fla. 2007).
The Magistrate Judge determined Appellees proved
ownership for three marks registered with the United
States Patent and Trademark Office, which is “prima
facie evidence of the mark’s validity and of the regis-
trant’s ownership of . . . the trademark . . . .” Appellees’
Suppl. App. 17 (citing 15 U.S.C. § 1115(a)). Appellees
assert a common law right to the remaining eight marks
in dispute. Id.
Ownership of a common law mark is demonstrated by
showing “(1) it is the prior user of the unregistered mark
in the area and (2) it acquired a protectable interest in the
mark because the mark is either inherently distinctive or
has acquired a secondary meaning.” Pandora Jewelers
1995, Inc. v. Pandora Jewelry, LLC, 703 F. Supp. 2d 1307,
1312 (S.D. Fla. 2010) (citation omitted). During the
preliminary injunction proceedings, Mr. Aguila only
EDGE SYS. LLC v. AGUILA 15

disputed the prior use of the marks. Appellees’ Suppl.
App. 18. The Magistrate Judge determined Appellees
provided evidence that “firmly establishes” that they were
“the first to use the trademarks in dispute.” Id. The
Magistrate Judge determined that the Appellees’ testi-
mony was more persuasive than Mr. Aguila’s uncorrobo-
rated testimony. Id. at 19.
The Magistrate Judge also rejected evidence submit-
ted by Mr. Aguila (i.e., two invoices) several weeks after
the evidentiary hearing. Id. The Magistrate Judge stated
that he held a “telephonic status conference” before the
evidentiary hearing. Id. at 20. During that meeting, the
Magistrate Judge “made clear that [he] expected [the
parties] to present all their evidence that bore on any
issues in dispute at that hearing.” Id. The Magistrate
Judge also observed Mr. Aguila’s reliance on his pro se
status and his alleged lack of familiarity with the Federal
Rules of Evidence was disingenuous because he displayed
a familiarity with these rules. Id. at 20. The Magistrate
Judge disregarded Mr. Aguila’s rationale for leaving the
original invoices in Germany—i.e., that he lacked an
understanding of the evidentiary rules and thought they
would be inadmissible hearsay—because Mr. Aguila was
explicitly informed before the hearing, and before flying
from Germany to Miami for the hearing, that all evidence
was expected to be presented at that hearing. Id. at 20–
21. The Magistrate Judge concluded his analysis by
noting the authenticity of the untimely-submitted invoic-
es would have been at issue: “[t]here is nothing inherent
about the documents to suggest they are authentic. I
would not have admitted these documents into evidence
at the hearing without first having [Mr. Aguila] ques-
tioned, under oath, about their creation and preserva-
tion.” Id.
Mr. Aguila argues the district court erred in excluding
“into evidence the two old invoices from [Mr.] Aguila that
show[s] that he was using the trade name of ‘Edge Sys-
16 EDGE SYS. LLC v. AGUILA

tems[’] and the ‘E’ logo before the [A]ppellees.” Appel-
lant’s Br. 28. Mr. Aguila contends “[t]he Magistrate
Judge provide[d] no reason[] not to believe neither [Mr.]
Aguila’s declaration nor [Mr.] Aguila’s invoices.” Id.
However, this statement is inapposite because the docu-
ments were excluded as untimely. Mr. Aguila cites no
precedent supporting his assertion that the district court
abused its discretion in excluding his untimely evidence.
See Appellees’ Suppl. App. 21 (The Magistrate Judge
asserted that “[s]imple notions of fairness counsel to not
accept these [] documents after both parties rested their
case and the hearing concluded.”).
In reviewing the district court’s application of local
procedural rules, we give broad deference to the district
court. SanDisk Corp. v. Memorex Prods., Inc., 415 F.3d
1278, 1292 (Fed. Cir. 2005). “[W]hen reviewing that
exercise of discretion this court determines whether (1)
the decision was clearly unreasonable, arbitrary, or
fanciful; (2) the decision was based on an erroneous
conclusion of law; (3) the court’s findings were clearly
erroneous; or (4) the record contains no evidence upon
which the court rationally could have based its decision.”
Id. (internal quotation marks and citation omitted).
Based on the reasoning provided by the Magistrate
Judge, we find that there was no abuse of discretion. The
Magistrate Judge informed the parties of his expectations
for evidence before the evidentiary hearing. The Magis-
trate Judge’s decision to exclude the untimely evidence
was consistent with his order and the local evidentiary
rules. We find no error in the Magistrate Judge’s deci-
sion.
1. The District Court Did Not Abuse Its Discretion in
Rejecting Mr. Aguila’s Laches Defense to the Claim of
Trademark Infringement
The doctrine of laches is an affirmative defense, Fed.
R. Civ. P. 8(c), based on a party’s unexcused delay that
EDGE SYS. LLC v. AGUILA 17

prevents that party from asserting a claim after too much
time has passed. See Petrella v. Metro-Goldwyn-Mayer,
Inc., 134 S. Ct. 1962, 1967 (2014) (describing laches as
“unreasonable, prejudicial delay in commencing suit”).
During the preliminary injunction proceeding, Mr.
Aguila asserted Appellees’ trademark infringement claim
was barred by laches. The Magistrate Judge determined
that Mr. Aguila “base[d] his laches defense on the cease
and desist letter that [Appellees] sent him in January
2010. . . . Shortly after this cease and desist letter, [Mr.
Aguila] formally dissolved DiamondSkin Systems by filing
Articles of Dissolution with the Florida Secretary of
State.” Appellees’ Suppl. App. 22 (citation omitted). The
Magistrate Judge determined Mr. Aguila “did not offer
any contemporaneous evidence that he continued sales
between 2010 and 2014, nor did he demonstrate that
[Appellees] knew or should have known of such ongoing
infringement years before they filed this suit.” Id. at 239.
The Magistrate Judge found the Appellees’ witnesses
credible and determined Appellees’ response of taking no
further action after the 2010 letter was reasonable be-
cause they believed the matter was closed once Mr. Agui-
la’s company was dissolved. Id. Appellees’ delay was
excusable.
Mr. Aguila bears the burden of proving the affirma-
tive defense of laches. Conagra, Inc. v. Singleton, 743
F.2d 1508, 1516 (11th Cir. 1984). Proving laches requires
demonstrating: “(1) a delay in asserting a right or claim;
(2) that the delay was not excusable; and (3) that the
delay caused the defendant undue prejudice.” Id. at 1517
(footnote and citation omitted). In the trademark context,
“[d]elay is measured from the time the plaintiff knew or
should have known that it had a provable claim for in-
fringement, but it is under no obligation to sue until the
likelihood of confusion looms large.” Buccellati Holding
Italia SPA v. Laura Buccellati, LLC, 5 F. Supp. 3d 1368,
1375 (S.D. Fla. 2014) (citation omitted); see AmBrit, Inc.
18 EDGE SYS. LLC v. AGUILA

v. Kraft, Inc., 812 F.2d 1531, 1546 (11th Cir. 1986) (dis-
cussing laches and delay in asserting rights). “The
amount of prejudice suffered by the defendant is weighed
against the public interest in avoiding confusion.” Buccel-
lati Holding Italia SPA, 743 F. Supp. 3d at 1375 (citation
omitted).
On appeal, Mr. Aguila asserts that laches should eq-
uitably estop Edge from asserting its trademark rights,
and that therefore Mr. Aguila should be allowed to con-
tinue his use of “Edge Systems” and “E” trademarks. Mr.
Aguila’s arguments are mere restatements of what he
previously argued to the Magistrate Judge. His argu-
ments are ipse dixit, failing to provide any reasoned
analysis of the applicable law to the facts of this case. Mr.
Aguila also does not point to any error the Magistrate
Judge made. Accordingly, we find there was no abuse of
discretion.
D. The District Court Did Not Abuse Its Discretion in
Granting a Preliminary Injunction for Trade Dress In-
fringement
“Trade Dress involves the total image of a product and
may include features such as size, shape, color or color
combinations, texture, graphics, or even particular sales
techniques.” AmBrit, Inc., 812 F.2d at 1535 (internal
quotation marks and citation omitted). “[T]o prevail on a
trade dress infringement claim under § 43(a) [of the
Lanham Act, 15 U.S.C. § 1125(a)], the plaintiff must
prove three elements: 1) its trade dress is inherently
distinctive or has acquired secondary meaning, 2) its
trade dress is primarily non-functional, and 3) the de-
fendant’s trade dress is confusingly similar.” Id. (citation
and footnote omitted).
During the preliminary injunction proceeding, Mr.
Aguila’s only challenge to Appellees’ claim of trade dress
infringement was that Aguila “was the first to use the
trade dress in dispute.” Appellees’ Suppl. App. 24. The
EDGE SYS. LLC v. AGUILA 19

Magistrate Judge determined the only evidence submitted
by Mr. Aguila to support his argument was uncorroborat-
ed testimony, which the Magistrate Judge found not
credible. Id. Thus, the Magistrate Judge determined
Appellees had a likelihood of success on its claim of trade
dress infringement. Id. at 23–24.
On appeal, Mr. Aguila presents conclusory statements
regarding trade dress infringement. He does not advance
developed arguments nor does he cite to legal precedent in
support of his position. Accordingly, Mr. Aguila has
waived his trade dress infringement argument. See
SmithKline Beecham Corp., 439 F.3d at 1320.
Additionally, Mr. Aguila argues, for the first time on
appeal, that Appellees’ trade dress is only functional. “[I]t
is the general rule . . . that a federal appellate court does
not consider an issue not passed upon below.” Golden
Bridge Tech., Inc. v. Nokia, Inc., 527 F.3d 1318, 1322
(Fed. Cir. 2008) (internal quotation marks and citation
omitted). Mr. Aguila has not proffered any argument to
warrant deviation from this general rule and has waived
this issue. See id. (listing circumstances where argu-
ments not raised below may be heard on appeal).
E. The Remaining Winter Factors Favor Appellees
The Magistrate Judge concluded its opinion by ana-
lyzing the remaining Winter Factors of irreparable injury,
balance of the hardships, and the public interest. The
Magistrate Judge concluded: (1) Appellees are likely to
suffer irreparable harm in the absence of a preliminary
injunction; (2) an analysis of the balance of the hardships
favors issuing the preliminary injunction; and (3) the
public interest is best served by protecting consumers
from being misled about the source of the manufacturer of
the machines and serums in question. Appellees’ Suppl.
App. 28–31.
20 EDGE SYS. LLC v. AGUILA

On appeal, Mr. Aguila contends that the district court
erred “legally and factually in concluding that the
[A]ppellees are [] likely to suffer irreparable harm in the
absence of preliminary relief.” Appellant’s Br. 8. Mr.
Aguila also contends the district court erred “in finding
irreparable harm, despite the [A]ppellees’ failure to show
a specific nexus between its alleged harm and . . . [Mr.
Aguila’s] practice of the purportedly inventive feature.”
Id. at 9.
Mr. Aguila fails to further discuss these statements
later in his brief or analyze them against the operative
legal framework. Accordingly, we deem these arguments
waived. See SmithKline Beecham Corp., 439 F.3d at
1320. Based on the record before the Magistrate Judge,
we find the court did not abuse its discretion in granting
Appellees a preliminary injunction for patent infringe-
ment, trademark infringement, and trade dress infringe-
ment.
CONCLUSION
We have considered Mr. Aguila’s remaining argu-
ments and find them unpersuasive. Accordingly, the
decision of the of the United States District Court for the
Southern District of Florida is
AFFIRMED
COSTS
Each party shall bear its own costs.