Robert Bosch LLC v. Pylon Manufacturing Corp.

United States Court of Appeals
for the Federal Circuit
__________________________

ROBERT BOSCH LLC,
Plaintiff-Appellant,
v.
PYLON MANUFACTURING CORP.,
Defendant-Appellee.
__________________________

2011-1096
__________________________

Appeal from the United States District Court for the
District of Delaware in Case No. 08-CV-542, Judge Sue L.
Robinson.
_________________________

Decided: October 13, 2011
_________________________

MARK A. HANNEMANN, Kenyon & Kenyon LLP, of New
York, New York, argued for plaintiff-appellant. With him
on the brief were MICHAEL J. LENNON and JEFFREY S.
GINSBERG. Of counsel was SUSAN A. SMITH.

GREGORY L. HILLYER, Feldman Gale, P.A., of Phila-
delphia, Pennsylvania, argued for defendant-appellee.
With him on the brief were NICOLE D. GALLI; and JAMES
A. GALE, of Miami, Florida
__________________________
ROBERT BOSCH v. PYLON MFG CORP 2

Before BRYSON, O’MALLEY, and REYNA, Circuit Judges.
Opinion for the court filed by Circuit Judge O’MALLEY.
Dissenting opinion filed by Circuit Judge BRYSON.
O’MALLEY, Circuit Judge.
Robert Bosch LLC (“Bosch”) appeals from the order of
the United States District Court for the District of Dela-
ware, denying Bosch’s post-trial motion for entry of a
permanent injunction. Because the district court abused
its discretion when it denied a permanent injunction on
this record, we reverse and remand with instructions to
enter an appropriate injunction.
BACKGROUND
This is a patent infringement case involving wind-
shield wiper technology, specifically beam-type wiper
blades (“beam blades”). Beam blades are a relatively new
technology that offers several advantages over conven-
tional, or “bracketed,” wiper blades, including more evenly
distributed pressure across the length of the blade and
better performance in inclement weather. Part of Bosch’s
business involves developing wiper blades, and Bosch
owns patents covering various aspects of beam blade
technology. In addition to its research and development
efforts, Bosch sells blades to both original equipment
manufacturers and aftermarket retailers. Pylon Manu-
facturing Corp., LLC (“Pylon”) also sells beam blades and
has competed with Bosch for business from retailers such
as Wal-Mart.
In August 2008, Bosch sued Pylon in the District of
Delaware, alleging infringement of U.S. Patent Nos.
6,292,974 (“the ’974 Patent”), 6,675,434 (“the ’434 Pat-
ent”), 6,944,905 (“the ’905 Patent”), and 6,978,512 (“the
3 ROBERT BOSCH v. PYLON MFG CORP

’512 Patent”). 1 On June 9, 2009, during a hearing regard-
ing Bosch’s alleged failure to produce certain financial
data, the court informed the parties of its preference for
bifurcating the issue of damages and suggested that this
procedural mechanism may address the parties’ discovery
dispute. In response, Pylon moved to bifurcate the issues
of damages and willfulness, a request that Bosch opposed.
The district court granted Pylon’s motion, noting its
“determin[ation] that bifurcation is appropriate, if not
necessary, in all but exceptional patent cases.” Memo-
randum Order, Robert Bosch LLC v. Pylon Mfg. Corp., No.
08-cv-542 (D. Del. Aug. 26, 2009), ECF No. 123.
The parties subsequently moved for summary judg-
ment with respect to the validity and infringement of
various claims. On March 30, 2010, the district court
granted Pylon’s motion for summary judgment of nonin-
fringement of the ’512 Patent, but denied its motion for
summary judgment of invalidity of the ’974 and ’512
Patents. The court also granted Bosch’s motions for
summary judgment of: (1) infringement of claims 1 and 8
of the ’974 Patent; and (2) no inequitable conduct and no
invalidity for derivation as to the ’905 and ’434 Patents.
The remaining issues were tried to a jury, which found:
(1) claim 13 of both the ’905 and ’434 Patents valid and
infringed; (2) claims 1 and 5 of the ’434 Patent infringed,
but invalid for obviousness; and (3) claims 1 and 8 of the
’974 Patent invalid based on obviousness and derivation.
In light of the jury’s determination that Pylon in-
fringed valid claims of the ’905 and ’434 Patents, Bosch
moved for entry of a permanent injunction. In a memo-

1 In its infancy, the case also included claims that
Pylon had engaged in false advertising and a counter-
claim alleging Bosch's infringement of a Pylon patent.
These claims were dismissed before trial and are not at
issue in this appeal.
ROBERT BOSCH v. PYLON MFG CORP 4

randum opinion dated November 3, 2010, the court denied
the motion on grounds that Bosch failed to show that it
would suffer irreparable harm. At the outset of its analy-
sis, the district court noted an apparent difficulty faced by
courts “struggling to balance the absence of a presump-
tion of irreparable harm with a patentee’s right to ex-
clude,” and observed that other courts had “frequently
focused upon the nature of the competition between
plaintiff and defendant in the relevant market in the
context of evaluating irreparable harm and the adequacy
of money damages.” Robert Bosch LLC v. Pylon Mfg.
Corp., 748 F. Supp. 2d 383, 407 (D. Del. 2010). The court
also discerned a tendency among district courts to award
permanent injunctions: (1) “under circumstances in which
the plaintiff practices its invention and is a direct market
competitor”; and (2) where the plaintiff’s “patented tech-
nology is at the core of its business . . . .” Id. at 407-08.
With these factors in mind, the court proceeded to as-
sess the nature of the competition between Bosch and
Pylon. In doing so, the court identified deficiencies it
perceived in Bosch’s presentation of the competitive
landscape, including a failure to “provide[] a clear, sum-
mary-level overview of the relevant market” and “a
breakdown illuminating [the parties’] relative market
percentages.” Id. at 408. The court also focused on the
fact that “[t]his is not a clear case of a two-supplier mar-
ket wherein a sale to Pylon necessarily represents the loss
of a sale to Bosch” and “wiper blades alone are not at the
core of [Bosch’s] business.” Id. at 408. Based on: (1) its
conclusion that Bosch “fail[ed] to define a relevant mar-
ket”; (2) the “existence of additional competitors”; and (3)
the “non-core nature of Bosch’s wiper blade business in
relation to its business as a whole,” the court concluded
that Bosch failed to show it would suffer irreparable
harm. Id. Finding the absence of irreparable harm fatal
5 ROBERT BOSCH v. PYLON MFG CORP

to Bosch’s motion, the court denied the request for an
injunction without addressing the remaining equitable
factors of the permanent injunction inquiry.
Bosch timely appealed the district court’s interlocu-
tory order, asserting jurisdiction under 28 U.S.C. §§ 1291
and 1292.
JURISDICTION
Whether this court has jurisdiction over an appeal
taken from a district court judgment is a question of
“Federal Circuit law, not that of the regional circuit from
which the case arose.” Pause Tech. LLC v. TiVo Inc., 401
F.3d 1290, 1292 (Fed. Cir. 2005) (citing Woodard v. Sage
Prods., Inc., 818 F.2d 841, 844 (Fed. Cir. 1987) (en banc)).
Section 1292(a)(1) provides that “the courts of appeals
shall have jurisdiction of appeals” from “[i]nterlocutory
orders of the district courts of the United States . . .
granting, continuing, modifying, refusing or dissolving
injunctions . . . .” 28 U.S.C. § 1292(a)(1). Section
1292(c)(1), moreover, confers upon this court exclusive
jurisdiction over such appeals if we would otherwise have
jurisdiction under § 1295. Thus, on its face, the district
court’s order denying Bosch’s request for a permanent
injunction in a patent case falls within the scope of
§ 1292(a)(1), (c)(1). See Cross Med. Prods. v. Medtronic
Sofamor Danek, Inc., 424 F.3d 1293, 1300 (Fed. Cir. 2005)
(“Medtronic appeals from an order permanently enjoining
Medtronic from infringing the ’555 patent. On its face,
the order falls within the scope of § 1292(a)(1), (c)(1).”).
Pylon admits that § 1292(a)(1) provides a sound basis
for jurisdiction, but contends that jurisdiction under that
section “has not been established.” Appellee’s Br. 1.
According to Pylon, Bosch was required to show that the
order will have “a serious, perhaps irreparable conse-
quence” and that the order can be “effectually challenged”
ROBERT BOSCH v. PYLON MFG CORP 6

only “by immediate appeal.” Id. at 20 (quoting Stringfel-
low v. Concerned Neighbors in Action, 480 U.S. 370, 379
(1987) and Carson v. American Brands, Inc., 450 U.S. 79,
84 (1981)). Pylon argues that Bosch failed to make such a
showing and that we should, accordingly, “decline to
exercise jurisdiction over this appeal at this time and
dismiss with leave to refile after final judgment is entered
below.” Id. at 23.
Bosch counters that the additional hurdles cited by
Pylon apply only in cases involving orders that do not
expressly deny an injunction, but have the effect of deny-
ing injunctive relief. Because its appeal is from an order
“explicitly” denying a request for an injunction, Bosch
contends that it need not make any additional showing for
jurisdiction to attach under § 1292(a)(1). We agree.
This court has made clear that a party appealing an
order that expressly grants or denies a permanent injunc-
tion need not also demonstrate that the order will have “a
serious, perhaps irreparable consequence” and that “the
order can be effectively challenged only by immediate
appeal.” See Cross Med. Prods., 424 F.3d at 1300. When
confronted with this issue in Cross Medical, we explained
that these “Carson requirements” apply only where there
is no order specifically granting or denying injunctive
relief, but the appellant argues that the appealed order
has the effect of granting or denying such relief. Id. We
also observed that the “Supreme Court [had] confirmed
our reading of Carson as applying only to orders that have
‘the practical effect of granting or denying injunctions.’ ”
Id. at 1301 (quoting Gulfstream Aerospace Corp. v. May-
acamas Corp., 485 U.S. 271, 287-288 (1988) (“Section
1292(a)(1) will, of course, continue to provide appellate
jurisdiction over orders that grant or deny injunctions and
orders that have the practical effect of granting or deny-
ing injunctions and have serious, perhaps irreparable,
7 ROBERT BOSCH v. PYLON MFG CORP

consequence.” (internal quotation marks omitted)). It is,
thus, well-established that, “if the district court’s order
expressly grants [or denies] an injunction, the order is
appealable under § 1292(a)(1), without regard to whether
the appellant is able to demonstrate serious or irreparable
consequences.” Id. (quoting 19 James Wm. Moore et al.,
Moore’s Federal Practice ¶ 203.10[2][a], at 14 (3d ed.
2005)).
In this case, the district court entered an order ex-
pressly denying Bosch’s motion for entry of a permanent
injunction. The Carson requirements are, thus, inappli-
cable, and we have jurisdiction under 28 U.S.C.
§ 1292(a)(1). 2
STANDARD OF REVIEW
This court reviews the denial of a permanent injunc-
tion for abuse of discretion. See i4i Ltd. P’ship v. Micro-
soft Corp., 598 F.3d 831, 861 (Fed. Cir. 2010). A district
court abuses its discretion when it acts “based upon an
error of law or clearly erroneous factual findings” or
commits “a clear error of judgment.” Ecolab, Inc. v. FMC
Corp., 569 F.3d 1335, 1352 (Fed. Cir. 2009). A clear error
of judgment occurs when the “record contains no basis on

2 In the alternative, Pylon argues that we should
stay this appeal pending the district court’s entry of final
judgment and the outcome of the parties’ merits appeal
“so as to avoid any unnecessary duplication of efforts.”
Appellee’s Br. at 24. Pylon cites no cases in which we
have taken such measures, let alone a case, such as this,
where the infringer did not post a bond. Pylon has not
volunteered to post a bond and we decline its invitation to
grant what would, in effect, be an unbonded stay of in-
definite duration – particularly in light of Bosch’s unre-
butted evidence of Pylon’s inability to satisfy a judgment.
On remand, Pylon remains free to seek a stay of the
injunction and, if successful, post an appropriate bond.
ROBERT BOSCH v. PYLON MFG CORP 8

which the district court rationally could have made its
decision or if the judicial action is arbitrary, fanciful or
clearly unreasonable.” Datascope Corp. v. SMEC, Inc.,
879 F.2d 820, 828 (Fed. Cir. 1989) (quoting PPG Indus.,
Inc. v. Celanese Polymer Specialties Co., 840 F.2d 1565,
1572 (Fed. Cir. 1988) (Bissel, J., concurring)). “To the
extent the court’s decision is based upon an issue of law,
we review that issue de novo.” Ecolab, 569 F.3d at 1352
(quoting Sanofi-Synthelabo v. Apotex, Inc., 470 F.3d 1368,
1374 (Fed. Cir. 2006)).
DISCUSSION
Consistent with traditional equitable principles, a
patentee seeking a permanent injunction must make a
four-part showing:
(1) that it has suffered an irreparable injury; (2)
that remedies available at law, such as monetary
damages, are inadequate to compensate for that
injury; (3) that, considering the balance of hard-
ships between the plaintiff and the defendant, a
remedy in equity is warranted; and (4) that the
public interest would not be disserved by a per-
manent injunction.
eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391
(2006). Prior to the Supreme Court’s decision in eBay,
this court followed the general rule that a permanent
injunction will issue once infringement and validity have
been adjudged, absent a sound reason to deny such relief.
See, e.g., Richardson v. Suzuki Motor Co., 868 F.2d 1226,
1247 (Fed. Cir. 1989) (citing W.L. Gore & Assocs., Inc. v.
Garlock, Inc., 842 F.2d 1275, 1281 (Fed. Cir. 1988)). In
addition, at least in the context of preliminary injunctive
relief, we applied an express presumption of irreparable
harm upon finding that a plaintiff was likely to succeed
on the merits of a patent infringement claim. See Smith
9 ROBERT BOSCH v. PYLON MFG CORP

Int’l, Inc. v. Hughes Tool Co., 718 F.2d 1573, 1581 (Fed.
Cir. 1983) (“We hold that where validity and continuing
infringement have been clearly established, as in this
case, immediate irreparable harm is presumed.” (foot-
notes omitted)). Based on our case law, district courts
also have applied a presumption of irreparable harm
following judgment of infringement and validity to sup-
port the issuance of permanent injunctions. See, e.g.,
Fisher-Price, Inc. v. Safety 1st, Inc., 279 F. Supp. 2d 526,
528-29 (D. Del. 2003) (entering a permanent injunction
after noting that irreparable harm is presumed in patent
cases); Boehringer Ingelheim Vetmedica, Inc. v. Schering-
Plough Corp., 106 F. Supp. 2d 696, 701 (D.N.J. 2000)
(same). 3
In eBay, the Supreme Court made clear that “broad
classifications” and “categorical rule[s]” have no place in
this inquiry. 547 U.S. at 393. Instead, courts are to
exercise their discretion in accordance with traditional
principles of equity. Id. at 394. The Supreme Court,
however, did not expressly address the presumption of
irreparable harm, and our subsequent cases have not
definitively clarified whether that presumption remains
intact. See Broadcom Corp. v. Qualcomm Inc., 543 F.3d
683, 702 (Fed. Cir. 2008) (“It remains an open question
whether there remains a rebuttable presumption of
irreparable harm following eBay.” (internal quotation

3 Indeed, applying this presumption to permanent
injunctions was entirely reasonable at the time, given
that “[t]he standard for a preliminary injunction is essen-
tially the same as for a permanent injunction with the
exception that the plaintiff must show a likelihood of
success on the merits rather than actual success.” Amoco
Prod. Co. v. Village of Gambell, 480 U.S. 531, 546 n.12
(1987) (citation omitted).
ROBERT BOSCH v. PYLON MFG CORP 10

marks and citation omitted)). 4 Our statements on this
topic have led one district court judge to conclude that
“the presumption of irreparable harm is at best on life
support.” Red Bend Ltd. v. Google, Inc., 2011 WL
1288503, at *18 (D. Mass. Mar. 31, 2011) (citations omit-
ted). We take this opportunity to put the question to rest
and confirm that eBay jettisoned the presumption of
irreparable harm as it applies to determining the appro-
priateness of injunctive relief. In so holding, we join at
least two of our sister circuits that have reached the same
conclusion as it relates to a similar presumption in copy-
right infringement matters. See Perfect 10, Inc. v. Google,
Inc., --- F.3d ---, 2011 WL 3320297, at *4 (9th Cir. Aug. 3,
2011) (“[W]e conclude that our longstanding rule that a
showing of a reasonable likelihood of success on the
merits in a copyright infringement claim raises a pre-
sumption of irreparable harm is clearly irreconcilable
with the reasoning of the Court’s decision in eBay and has
therefore been effectively overruled.” (internal quotation
marks and citations omitted)); Salinger v. Colting, 607
F.3d 68, 76-78 (2d Cir. 2010) (finding that eBay abrogated
the presumption of irreparable harm in copyright cases).
Although eBay abolishes our general rule that an in-
junction normally will issue when a patent is found to
have been valid and infringed, it does not swing the
pendulum in the opposite direction. In other words, even
though a successful patent infringement plaintiff can no
longer rely on presumptions or other short-cuts to support
a request for a permanent injunction, it does not follow

4 In an unpublished decision, we stated without
analysis, and without citation to our other cases describ-
ing the issue as an open question, that eBay discarded the
presumption of irreparable harm. Automated Merch. Sys.,
Inc. v. Crane Co., 357 Fed. Appx. 297, 301 (Fed. Cir. Dec.
16, 2009).
11 ROBERT BOSCH v. PYLON MFG CORP

that courts should entirely ignore the fundamental nature
of patents as property rights granting the owner the right
to exclude. Indeed, this right has its roots in the Consti-
tution, as the Intellectual Property Clause of the Consti-
tution itself refers to inventors’ “exclusive Right to their
respective . . . Discoveries.” U.S. Const. art. I, § 8, cl. 8
(emphasis added). Although the Supreme Court disap-
proved of this court’s absolute reliance on the patentee’s
right to exclude as a basis for our prior rule favoring
injunctions, that does not mean that the nature of patent
rights has no place in the appropriate equitable analysis.
See eBay, 547 U.S. at 392 (“According to the Court of
Appeals, this statutory right to exclude alone justifies its
general rule in favor of permanent injunctive relief. But
the creation of a right is distinct from the provision of
remedies for violations of that right.”). While the pat-
entee’s right to exclude alone cannot justify an injunction,
it should not be ignored either. See Acumed LLC v.
Stryker Corp., 551 F.3d 1323, 1328 (Fed. Cir. 2008) (find-
ing in a post-eBay decision that, “[i]n view of that right [to
exclude], infringement may cause a patentee irreparable
harm not remediable by a reasonable royalty”).
The abolition of categorical rules and the district
court’s inherent discretion to fashion equitable relief,
moreover, also do not mandate that district courts must
act on a clean slate. “Discretion is not whim, and limiting
discretion according to legal standards helps promote the
basic principle of justice that like cases should be decided
alike.” eBay, 547 U.S. at 395 (Roberts, J., concurring)
(quoting Martin v. Franklin Capital Corp., 546 U.S. 132,
139 (2005)). In this area, as others, “a page of history is
worth a volume of logic” when “it comes to discerning and
applying those standards.” Id. (quoting New York Trust
Co. v. Eisner, 256 U.S. 345, 349 (1921) (Holmes, J.)). This
wisdom is particularly apt in traditional cases, such as
ROBERT BOSCH v. PYLON MFG CORP 12

this, where the patentee and adjudged infringer both
practice the patented technology. See id. at 396–97
(Kennedy, J., concurring) (contrasting the relevant con-
siderations in traditional patent infringement actions
with certain cases arising now “in which firms use patents
not as a basis for producing and selling goods but, instead,
primarily for obtaining licensing fees,” “[w]hen the pat-
ented invention is but a small component of the product,”
and those involving “the burgeoning number of patents
over business methods” (citation omitted)).
Over the past quarter-century, this court has encoun-
tered many cases involving a practicing patentee seeking
to permanently enjoin a competitor upon an adjudication
of infringement. In deciding these cases, we have devel-
oped certain legal standards that inform the four-factor
inquiry and, in particular, the question of irreparable
harm. While none of these standards alone may justify a
general rule or an effectively irrebuttable presumption
that an injunction should issue, a proper application of
the standards to the facts of this case compels the conclu-
sion that Bosch is entitled to the injunction it seeks. It is
in ignoring these standards, and supplanting them with
its own, that the district court abused its discretion.
We address each component of the four-factor test in
turn.
I.
Bosch argues that the district court committed legal
error by establishing categorical rules in its irreparable
injury analysis. Specifically, Bosch contends that the
district court adopted per se rules that “the existence of
additional competitors” and “the non-core nature of
Bosch’s wiper blade business in relation to its business as
a whole” each independently preclude a finding of irrepa-
rable harm. Appellant’s Br. 26. Bosch further argues
13 ROBERT BOSCH v. PYLON MFG CORP

that, on this record, no court acting within its discretion
could find an absence of irreparable harm. In this regard,
Bosch points to evidence of: (1) loss in market share and
access to customers; (2) Pylon’s inability to satisfy a
judgment; and (3) direct competition between it and Pylon
in “each and every distribution channel in [the relevant]
market.” Id. at 26. According to Bosch, “decades of
jurisprudence confirm that a patentee in [these] circum-
stances has suffered irreparable harm.” Id. at 33.
In response, Pylon argues that the district court never
concluded that “there had to be a two-supplier market” or
that “the wiper blade business had to be at the core of
Bosch’s business in order for an injunction to be war-
ranted.” Appellee’s Br. 27 (emphases in original). In-
stead, Pylon contends, the district court applied the
“proper legal standard to the evidence presented and
concluded, as a factual matter, that the evidence pre-
sented was inadequate to establish irreparable harm.” Id.
at 28.
While we agree that the district court did not estab-
lish categorical rules, we nevertheless conclude that the
district court committed legal error by the weight given to
the factors cited, and made a clear error in judgment in
its analysis of the irreparable harm factor. Specifically,
while facts relating to the nature of the competition
between the parties undoubtedly are relevant to the
irreparable harm inquiry, the court erred in relying
exclusively on the presence of additional competitors and
on the non-core nature of Bosch’s wiper blade business.
In addition, the court committed a clear error of judgment
when it concluded that Bosch failed to demonstrate ir-
reparable harm in the face of overwhelming evidence to
the contrary. This is particularly true in light of Bosch’s
evidence of: (1) the parties’ direct competition; (2) loss in
market share and access to potential customers resulting
ROBERT BOSCH v. PYLON MFG CORP 14

from Pylon’s introduction of infringing beam blades; and
(3) Pylon’s lack of financial wherewithal to satisfy a
judgment. Given these facts, there is “no basis on which
the district court rationally could have” concluded that
Bosch failed to show irreparable harm. See Datascope,
879 F.2d at 828. We first address the court’s legal errors
and then turn to the clear error of judgment.
A.
The court’s first legal error lies in its conclusion that
the presence of additional competitors, without more, cuts
against a finding of irreparable harm. It is well-
established that the “fact that other infringers may be in
the marketplace does not negate irreparable harm.”
Pfizer, Inc. v. Teva Pharms. USA, Inc., 429 F.3d 1364,
1381 (Fed. Cir. 2005). As we explained in Pfizer, a pat-
entee need not sue all infringers at once. Id. “Picking off
one infringer at a time is not inconsistent with being
irreparably harmed.” Id. Were we to conclude otherwise,
we would effectively establish a presumption against
irreparable harm whenever the market contains a plural-
ity of players. Under such circumstances, the first in-
fringer sued could always point to the existence of
additional competitors. And, perversely, if that infringer
were to succeed in defeating an injunction, subsequent
adjudged infringers could point to the market presence of
the first infringer when opposing a request for an injunc-
tion. Consequently, without additional facts showing that
the presence of additional competitors renders the in-
fringer’s harm reparable, the absence of a two-supplier
market does not weigh against a finding of irreparable
harm.
This principle, moreover, is not incompatible with the
cases cited by the district court, in which courts found
irreparable harm based, in part, on the absence of addi-
15 ROBERT BOSCH v. PYLON MFG CORP

tional competitors. While the existence of a two-player
market may well serve as a substantial ground for grant-
ing an injunction – e.g., because it creates an inference
that an infringing sale amounts to a lost sale for the
patentee – the converse is not automatically true, espe-
cially where, as here, it is undisputed that the patentee
has sought to enforce its rights against other infringers in
the market. The record reveals that Bosch has diligently
pursued infringers since the time it first learned of Py-
lon’s infringing beam blades. Once it became aware of the
infringement, Bosch immediately notified Pylon’s supplier
requesting that it cease production of infringing blades, to
which it agreed. Later, in October 2007, Bosch sued
Jamak Fabrication-Tex Ltd. in the District of Delaware,
alleging infringement of its beam blade patents. See
Robert Bosch LLC v. Jamak Fabrication-Tex Ltd., No. 07-
cv-676 (D. Del.).
During the pendency of its suit against Jamak, Bosch
learned that Pylon had started selling a new infringing
product. Accordingly, in August 2008, three months after
resolving its suit against Jamak, Bosch filed this action
against Pylon. Bosch subsequently sued an additional
competitor, Old World Industries, Inc., in March 2010 in
the United States District Court for the Northern District
of Illinois. See Robert Bosch LLC v. Old World Indus., No.
10-cv-1437 (N.D. Ill.). For these reasons, the court erred
in concluding that the absence of a two-player market
effectively prohibits a finding of irreparable harm in this
case.
B.
The court also erred in relying on the “non-core” na-
ture of Bosch’s wiper blade business in relation to its
business as a whole. As other courts have concluded, the
fact that an infringer’s harm affects only a portion of a
ROBERT BOSCH v. PYLON MFG CORP 16

patentee’s business says nothing about whether that
harm can be rectified. See, e.g., Hoffman-LaRoche, Inc. v.
Cobalt Pharma. Inc., No. 07-cv-4539, 2010 U.S. Dist.
LEXIS 119432, at *36-37 (D.N.J. Nov. 10, 2010) (“Cobalt
points to Roche’s size and profitability, and the small
impact the likely harms would have on Roche’s overall
profitability. That says nothing about whether such
harms are irreparable.”). Injuries that affect a “non-core”
aspect of a patentee’s business are equally capable of
being irreparable as ones that affect more significant
operations.
Under the district court’s approach, for example, a
large industrial corporation such as Bosch would find it
easier to obtain an injunction if it subdivided its opera-
tions into child companies, with each focusing on a par-
ticular product line. Under such circumstances, Pylon’s
infringement would go to the core of the business of
“Bosch Beam Blades LLC,” which would increase the
likelihood of irreparable harm. No one could seriously
contend, however, that the irreparability of any particular
injury should turn on incidental details such as a pat-
entee’s corporate structure. An injury is either of the
irreparable sort, or it is not. Consequently, the district
court erred in attributing weight to the non-core nature of
Bosch’s wiper blade business. See Praxair, Inc. v. ATMI,
Inc., 543 F.3d 1306, 1330 (Fed. Cir. 2008) (Lourie, J.,
concurring) (“[A] patent provides a right to exclude in-
fringing competitors, regardless of the proportion that the
infringing goods bear to a patentee’s total business.”).
It is true that some courts have referenced the fact
that the patented product is at the core of a party’s busi-
ness when explaining their bases for granting an injunc-
tion. TruePosition Inc. v. Andrew Corp., 568 F. Supp. 2d
500, 531 (D. Del. 2008) (granting a permanent injunction
after finding that “[p]laintiffs are also frequently success-
17 ROBERT BOSCH v. PYLON MFG CORP

ful when their patented technology is at the core of its
business . . . .”). The trial court’s error in relying on these
cases again arises from its conclusion that, if a fact sup-
ports the granting of an injunction, its absence likely
compels denial of one. That is not the law, however.
C.
In addition to these legal errors, the district court
committed a clear error in judgment when it concluded
that Bosch failed to demonstrate irreparable harm. The
record here contains undisputed evidence of direct compe-
tition in each of the market segments identified by the
parties. Bosch also introduced unrebutted evidence of
loss of market share and access to potential customers, as
well as Pylon’s inability to satisfy a judgment. The dis-
trict court, however, did not address any of this evidence,
but, instead, focused on: (1) the absence of a two-player
market; (2) the non-core nature of Bosch’s wiper blade
business; and (3) Bosch’s alleged failure to define a rele-
vant market. In view of the entirety of the record, we are
left with the firm conviction that there is no basis on
which the district court rationally could have concluded
that Bosch failed to demonstrate irreparable harm. We
begin with an overview of the nature of competition
between the parties before turning to the parties’ argu-
ments regarding harms arising from Pylon’s competition
with Bosch and Pylon’s apparent inability to satisfy a
judgment.
Although the parties dispute the finer details of the
nature and extent of their competition, we agree with
Bosch that the undisputed facts show that it competes
with Pylon in all of the market segments identified by the
parties. Neither Bosch nor Pylon sells directly to consum-
ers. Instead, both offer their blades to intermediaries,
who then sell the same to consumers. Before the district
ROBERT BOSCH v. PYLON MFG CORP 18

court, Bosch identified three channels of distribution in
the relevant market: (1) mass merchandisers, such as
Wal-Mart; (2) automotive specialty retailers; and (3)
original equipment manufacturers (“OEMs”). Pylon did
not dispute the existence of these distribution channels,
nor did it identify the existence of additional channels
within the relevant market. Rather, it disputed the
extent of competition in each of these three markets.
Specifically, Pylon argued, as it does now, that: (1) Bosch
sells original wiping systems to OEMs for installation on
new vehicles, while Pylon does not; (2) Bosch has a great
concentration of customers in automotive specialty retail-
ers, while Pylon lacks “a significant beam blade presence”
in this market; and (3) “Bosch does not sell any beam
blades to mass merchandisers.” Joint Appendix (“JA”)
880. Thus, while the parties disputed the extent of com-
petition within each distribution channel, there was no
dispute regarding the contours of the relevant market.
While Pylon now asserts that it does not agree “that these
channels comprise the relevant market,” Appellee’s Br.
34, it still fails to identify any additional distribution
channels, and we reject its belated attempt to create a
dispute as to this issue.
With respect to the mass-merchandiser channel, it is
undisputed that both parties have competed for Wal-
Mart’s business, which alone represents a substantial
portion of not only the mass-merchandiser channel, but
also the aftermarket as a whole. Both Bosch and Pylon
approached Wal-Mart in 2006 in an attempt to secure its
beam blade business, and Wal-Mart initially agreed to
distribute Bosch’s ICON beam blades beginning in April
2007. Bosch, however, failed to make a timely initial
delivery and, when it requested an extension, Wal-Mart
refused, choosing to sell Pylon’s infringing product in-
stead. Since losing the account, Bosch has made numer-
19 ROBERT BOSCH v. PYLON MFG CORP

ous efforts to regain Wal-Mart’s business and has even
offered a new, cheaper blade in an attempt to compete
with Pylon’s lower prices. Thus, while it is true that
Bosch has not succeeded in selling its beam blades in the
mass-merchandiser channel, the evidence shows that it
competes with Pylon for business with the largest partici-
pant in the aftermarket.
The record, likewise, shows direct competition in the
aftermarket specialty store segment. Both parties have
sold beam blades to AutoZone, and, although Pylon has
had limited success in securing business from other
specialty stores, it has competed against Bosch for busi-
ness from at least five of AutoZone’s competitors.
With respect to OEMs, Bosch sells its blades to most
of the major car manufacturers, including BMW, Chrys-
ler, Ford, General Motors, Hyundai, Mercedes Benz,
Toyota, Volkswagen, and Volvo. Pylon admits that it has
sold beam type wiper blades to at least one OEM, and has
attempted sell beam blades to at least two additional
manufacturers. The undisputed evidence, thus, demon-
strates that the parties directly compete for customers in
each of the relevant distribution channels.
Bosch argues that the harm caused by this competi-
tion is irreparable because it has suffered irreversible
price erosion, loss of market share, loss of customers, and
loss of access to potential customers. It also contends that
Pylon’s inability to satisfy a judgment renders its injury
irreparable. As Bosch notes, the district court did not
address any of these factors when concluding that an
injunction should not issue.
In response, Pylon contends that, while “Bosch has
preliminarily established that Pylon sells allegedly in-
fringing beam blades, [it] has not established that Pylon’s
sales have had any definable impact on Bosch’s sales of its
ROBERT BOSCH v. PYLON MFG CORP 20

own beam blades.” Appellee’s Br. 37. According to Pylon,
Bosch failed to prove that it was Pylon’s competition,
rather than that of other competitors, which caused it to
suffer lost market share and price erosion. Pylon further
argues that Bosch’s evidence of Pylon’s inability to pay is
unsupported and speculative. We disagree.
While it is true that at least some of Bosch’s loss of
market share is attributable to other competitors, it is
undisputed that it was Pylon that secured the Wal-Mart
account, which alone accounts for a substantial portion of
the entire market. Pylon argues that Bosch presumes
“that Wal-Mart would turn to Bosch if Pylon were en-
joined.” Appellee’s Br. 39. Bosch, however, makes no
such presumption. Rather, Bosch relies on the fact that it
previously secured the Wal-Mart account as circumstan-
tial evidence that it would reclaim Wal-Mart’s business
were Pylon enjoined. While the party seeking an injunc-
tion bears the burden of showing lost market share, this
showing need not be made with direct evidence. Here,
Bosch made a prima facie showing of lost market share,
and Pylon proffered no evidence to rebut that showing.
Pylon, likewise, failed to rebut the testimony of
Bosch’s Director of Product Management, Martin
Kashnowski, regarding its loss of access to potential
customers. See JA 954 (“[N]ot securing an account with
Wal-Mart has made it much more difficult for Bosch to
secure accounts with other mass-merchandisers, includ-
ing Sears, Target and K-Mart. If Wal-Mart was carrying
Bosch’s beam blades, then its competitors would want to
sell Bosch’s beam blades as well to maintain a competitive
position.”). With respect to evidence of price erosion,
although Bosch could have developed the effects of Pylon’s
conduct from that of other competitors more clearly, Mr.
Kashnowski’s testimony on this issue also stands unre-
butted. Consequently, Pylon’s arguments with respect to
21 ROBERT BOSCH v. PYLON MFG CORP

the sufficiency of Bosch’s evidence of lost market share,
the loss of access to potential customers, and irreversible
price erosion are not well-taken. 5
As additional evidence of irreparable harm, Bosch in-
troduced evidence showing that the financial condition of
both Pylon and its corporate parent raised questions
about Pylon’s ability to satisfy a judgment. Specifically,
Bosch submitted: (1) a Risk Management Report indicat-
ing that Pylon posed a “[m]oderate risk of severe financial
stress, such a bankruptcy, over the next 12 months” and
fell within the 49th percentile nationally in the category
of “Financial Stress,” JA 677; and (2) a public filing show-
ing that Qualitor Inc., which holds 100% of Pylon’s stock,
obtained a five million dollar loan at a rate of 8.46%,
JA827. In response, Pylon did not dispute the accuracy of
these submissions, nor did it submit evidence demonstrat-
ing its ability to pay a damages award, either of past or
future damages. Instead, Pylon responded with attorney
speculation and argued that, if, “as Bosch alleges, Pylon
sells so many beam blades, then there is little reason to
suspect that Pylon will not have sufficient resources to
pay a royalty to Bosch.” JA 893.
While the burden of proving irreparable harm was of
course Bosch’s, Pylon’s failure to submit rebuttal evidence
regarding its ability to satisfy an award of money dam-

5 Pylon also raises, for the first time on appeal,
various challenges to the admissibility of the testimony of
Bosch’s officers under Rules 701 and 702. Because evi-
dentiary objections not raised before the trial court are
deemed waived, and we otherwise do not discern any
plain error in the admission of this testimony, we do not
accept Pylon’s arguments. See Failla v. City of Passaic,
146 F.3d 149, 159-60 (3d Cir. 1998) (an evidentiary objec-
tion not raised before the district court is waived, and the
admission of evidence is only reversible for plain error).
ROBERT BOSCH v. PYLON MFG CORP 22

ages is troublesome given the procedural history of this
case. Because the district court granted Pylon’s motion to
bifurcate damages, Bosch had no opportunity to obtain
discovery relating to Pylon’s financial condition, or that of
its corporate parent before the court considered its re-
quest for injunctive relief. Consequently, facts relevant to
Pylon’s ability to satisfy a judgment were uniquely within
its control. While Bosch’s evidence of Pylon’s inability to
pay is not overwhelming – gleaned as it had to be from
public records, in light of Pylon’s failure to introduce any
rebuttal evidence or to even argue below or to this court
that Bosch’s characterization of its financial status is
inaccurate, and the unique procedural history of this case,
we conclude that this factor favors a finding of irreparable
harm. 6
In view of the foregoing evidence, the record contains
no basis on which the district court rationally could have
concluded that Bosch failed to demonstrate irreparable
harm or that a remedy other than injunction is sufficient

6 During a lengthy discussion at oral argument on
this issue, Pylon’s counsel, when asked directly, could not
offer express assurances that Pylon could satisfy a dam-
ages judgment and a prospective royalty payment. Oral
Argument (July 7, 2011) at 25:56–26:18, available at
http://www.cafc.uscourts.gov/oral-argument-
recordings/all/pylon.html. In addition, when asked why
Pylon did not produce evidence of its ability to satisfy a
money damages judgment, Pylon’s counsel said that, “our
response is to argue, as we did to the district court, based
on the evidence that was available, to make argument
and then live with the decision that Judge Robinson
ordered . . . .” Id. at 27:44–28:22. Pylon’s counsel also
contended, confusingly, that whether there was evidence
“available” to show Pylon’s ability to pay a judgment, and
whether Pylon decided not to produce it, was a matter “we
can and are debating.” Id. at 29:28–36.
23 ROBERT BOSCH v. PYLON MFG CORP

to address its harm. Consequently, the court committed a
clear error of judgment in analyzing this factor.
II.
Turning to the remaining equitable factors, we con-
clude that, on balance, they also favor entry of a perma-
nent injunction.
With respect to the adequacy of money damages,
Bosch argues that it will continue to suffer irreparable
harm due to lost market share, lost business opportuni-
ties, and price erosion unless Pylon is permanently en-
joined. According to Bosch, money damages alone cannot
fully compensate Bosch for these harms. We agree.
There is no reason to believe that Pylon will stop infring-
ing, or that the irreparable harms resulting from its
infringement will otherwise cease, absent an injunction.
Cf. Reebok Int’l, Ltd. v. J. Baker, Inc., 32 F.3d 1552, 1557
(Fed. Cir. 1994) (recognizing that “future infringement . . .
may have market effects never fully compensable in
money”). More importantly, the questionable financial
condition of both Pylon and its parent company reinforces
the inadequacy of a remedy at law. A district court
should assess whether a damage remedy is a meaningful
one in light of the financial condition of the infringer
before the alternative of money damages can be deemed
adequate. While competitive harms theoretically can be
offset by monetary payments in certain circumstances,
the likely availability of those monetary payments helps
define the circumstances in which this is so. See, e.g.,
Canon, Inc. v. GCC Int’l Ltd., 263 Fed. Appx. 57, 62 (Fed.
Cir. Jan. 25, 2008) (considering the improbability that the
patentee could collect a money judgment as weighing in
favor of an injunction); O2 Micro Int’l Ltd. v. Beyond
Innovation Tech. Co., No. 04-cv-42, 2007 WL 869576, at *2
(E.D. Tex. Mar. 21, 2007), vacated and remanded on other
ROBERT BOSCH v. PYLON MFG CORP 24

grounds, 521 F.3d 1351 (Fed. Cir. 2008) (finding that a
plaintiff demonstrated the inadequacy of monetary dam-
ages because “all three defendants are foreign corpora-
tions and that there is little assurance that it could collect
monetary damages”).
Here, the only evidence of record is that Pylon likely
will be faced with a substantial damages award for its
past infringement and may be unable to pay even that. In
the face of such evidence, the district court’s failure to
consider the extent to which a forward-looking monetary
award is a viable or meaningful alternative to an injunc-
tion was error. 7
We also conclude that the third factor, the balance of
hardships, favors Bosch. Pylon argues that “Bosch is an
international conglomerate with a diverse product base,”
whereas “Pylon is a small, domestic corporation that
focuses on the manufacture and sale of wiper blades,”
such that the parties’ respective size and business models
demonstrate that an injunction would burden Pylon more
than the absence of an injunction would harm Bosch.
Appellee’s Br. 58. We are not persuaded. A party cannot
escape an injunction simply because it is smaller than the

7 To the extent Pylon contends that we should re-
mand this case so that it can develop evidence of its
ability to pay a damages award, we are not persuaded.
Pylon is uniquely in control of its own financial informa-
tion, and it either could not or chose not to come forward
with relevant information. The difficulties posed with
respect to these issues are directly tied to the court’s
decision to bifurcate all of these issues for both discovery
and trial. The circumstances here point out the dangers
with a hard and fast rule regarding such bifurcation. It
was Pylon, moreover, against Bosch’s objection, that
asked the court to bifurcate the damages portion of this
case. It cannot now complain about the natural conse-
quences of the procedure it asked the court to adopt.
25 ROBERT BOSCH v. PYLON MFG CORP

patentee or because its primary product is an infringing
one. See Windsurfing Int’l, Inc. v. AMF, Inc., 782 F.2d
995, 1003 n.12 (Fed. Cir. 1986) (“One who elects to build a
business on a product found to infringe cannot be heard to
complain if an injunction against continuing infringement
destroys the business so elected.”). On the other hand,
requiring Bosch to compete against its own patented
invention, with the resultant harms described above,
places a substantial hardship on Bosch. This factor,
therefore, favors entry of an injunction in this case.
As to the public interest, we find that this factor is
neutral. Bosch argues that Pylon’s inferior product “may
potentially” compromise the public’s safety, Appellant’s
Br. 43, but there is no support in the record for that
assertion. Although Bosch also cites its right to exclude
and Pylon relies on its right to compete generally, neither
party offers specific arguments as to why, in this case, the
public interest would be served or disserved by an injunc-
tion. Although this final factor does not favor either
party, the remaining considerations lead to only one
reasonable conclusion: that Bosch has shown that it is
entitled to a permanent injunction.
Because the undisputed evidence conclusively shows
that permanent injunctive relief is warranted in this case,
we do not believe that remand of this matter is appropri-
ate. We agree with Bosch that, on the record as it stands,
any alternative result on remand necessarily would be an
abuse of discretion. Remand is particularly inappropriate
here because it would only delay relief to which Bosch
currently is entitled. Pylon has been competing against
Bosch with a product that a jury has concluded infringes
Bosch’s valid patents, and it has done so for seventeen
months since the jury’s verdict and for nearly one year
since the district court denied Bosch’s motion for a per-
manent injunction. It also has done so despite a record
ROBERT BOSCH v. PYLON MFG CORP 26

which contains compelling evidence supporting injunctive
relief in Bosch’s favor. Further delay, which would
amount to a stay of an injunction without a bond, would
be inequitable.
We agree, as the dissent urges, that normally a dis-
trict court should balance these equitable considerations
in the first instance, but the facts of this case compel a
different result. Unlike the cases on which the dissent
relies, including eBay itself, where the district courts
either could not have or did not apply the standard an-
nounced in eBay, the parties and the district court in this
case were well aware of the eBay standard when develop-
ing and applying the record. Again, to the extent that
bifurcation of the damages portion of the trial inhibited
development of the record as it relates to injunctive relief,
that was the result of Pylon’s doing. Remanding the
action for additional hearings prior to entry of injunctive
relief would punish the patentee for the district court’s
decision, at Pylon’s urging, to bifurcate the trial and for
the district court’s erroneous application of the law to the
evidence before it. We cannot endorse that result.
CONCLUSION
For the foregoing reasons, and because we find that
Pylon’s remaining arguments are without merit, we
reverse the district court’s denial of Bosch’s motion for
entry of a permanent injunction and remand for entry of
an appropriate injunction.
REVERSED AND REMANDED
COSTS
Costs are awarded to Bosch.
 United States Court of Appeals
for the Federal Circuit
__________________________

ROBERT BOSCH LLC,
Plaintiff-Appellant,

v.
PYLON MANUFACTURING CORP.,
Defendant-Appellee.
__________________________

2011-1096
__________________________

Appeal from the United States District Court for the
District of Delaware in Case No. 08-CV-0542, Judge Sue
L. Robinson.
__________________________

BRYSON, Circuit Judge, dissenting in part.

I agree with the majority that the district court erred
in its application of the eBay factors, and I therefore agree
that we should not affirm the district court’s order deny-
ing an injunction. However, I disagree with the major-
ity’s decision that the record compels the issuance of an
injunction and I therefore dissent with respect to that
aspect of this court’s judgment.

Whether Bosch is entitled to injunctive relief is a fact-
intensive inquiry that requires a careful balancing of
competing equitable concerns, none of which is disposi-
tive. The resolution of competing factual issues, such as
ROBERT BOSCH v. PYLON MFG CORP 2

the sufficiency and persuasiveness of the evidence that
Pylon’s infringement has and will continue to have ad-
verse effects on Bosch, is for the district court, which has
tried the infringement portion of this case to verdict and
is familiar with the record. I would therefore not direct
the entry of an injunction, but would follow the ordinary
course of remanding for the district court to decide
whether an injunction should issue based on a proper
application of the four-part test for granting permanent
injunctive relief. See eBay Inc v. MercExchange, L.L.C.,
547 U.S. 388, 394 (2006) (remanding “so that the District
Court may apply that framework in the first instance”);
Ecolab, Inc. v. FMC Corp., 569 F.3d 1335, 1351-52 (Fed.
Cir. 2009) (“Although the district court did not consider
the eBay factors, FMC nonetheless asserts that it made
the required showing and that it is entitled to injunctive
relief. However, we decline to analyze the eBay factors in
the first instance.”); Acumed LLC v. Stryker Corp., 483
F.3d 800, 811 (Fed. Cir. 2007) (“If we were to weigh the
evidence ourselves to reach a conclusion on injunctive
relief, we would effectively be exercising our own discre-
tion as if we were the first-line court of equity. That role
belongs exclusively to the district court. Our task is solely
to review the district court’s decisions for an abuse of
discretion.”).

The majority concludes that on this record any deci-
sion by the district court to deny an injunction to Bosch
would be an abuse of discretion. I disagree. In my view,
there are enough open questions of fact bearing on the
propriety of injunctive relief that we should not bypass
the district court’s consideration of those factual issues on
remand.

First, there is an open question whether, and to what
extent, Pylon and Bosch compete in the marketplace.
3 ROBERT BOSCH v. PYLON MFG CORP

Evidence before the district court showed that Pylon is
not the only competing manufacturer-distributor of beam
wiper blades in the market. The majority points out that
Bosch has sued several other manufacturer-distributors
in addition to Pylon for patent infringement. With the
exception of one case that has settled, however, the record
does not reflect the outcome of those suits and thus it
cannot be assumed that the other manufacturers actually
infringe Bosch’s patent rights. In addition, the evidence
is unclear as to whether Pylon’s presence in the beam
blade market was, or continues to be, the reason that
Bosch has not succeeded in its efforts to market its prod-
uct to Wal-Mart, the largest aftermarket retailer of auto-
motive parts. Thus, the proposition on which Bosch bases
much of its argument—that Pylon’s actions are inflicting
irreparable harm by causing it to lose sales—is at least
open to question and requires further factual develop-
ment. The majority is correct that it is not enough for the
district court simply to conclude that the beam blade
market is not a two-competitor market and to deny in-
junctive relief on that ground. But to the extent the
number of competitors and other characteristics of the
market affect the impact of Pylon’s sales on Bosch, those
issues are important to Bosch’s right to injunctive relief;
those intensely factual issues should be given further
consideration by the district court.

As the majority points out, Bosch contends that, in
addition to the loss of market share, it has suffered ir-
reparable harm in the form of price erosion, loss of cus-
tomers, and loss of access to potential customers, issues
on which the district court made no explicit findings. The
majority concludes that Bosch made a prima facie show-
ing on each of those issues and that because Pylon did not
rebut that showing, those issues can be conclusively
resolved against Pylon. I disagree with that approach to
ROBERT BOSCH v. PYLON MFG CORP 4

the resolution of those factual issues. Bosch’s evidence on
those issues was far from compelling; it is certainly in-
cumbent upon the district court to consider that evidence,
and it may be that the district court will find it persua-
sive. But that evidence was not so clear-cut that those
issues can be resolved based on a shifting of the burden of
proof. The evidence presents factual issues for the dis-
trict court to resolve, and we should direct that court to
resolve those issues rather than reaching out to decide
those issues ourselves without the aid of the pertinent
factual analysis by the district court.

Finally, there is a live issue as to the effect of the size
and diversity of the two parties: Bosch is large, and its
wiper blade sales are only a small part of its business,
while Pylon is small and wiper blades account for all of its
sales. The district court regarded those facts as cutting
against the issuance of an injunction on the ground that
the economic impact of the lost sales would not result in
irreparable harm to Bosch. The majority is correct that
harm may be comparatively small but still irreparable—
if, for example, Pylon is financially unable to compensate
Bosch for its losses from Pylon’s ongoing infringement.
But the respective size of the two parties affects another
factor bearing on whether the injunction should be
granted: the balance of hardships. As to that issue, the
majority simply says that a party cannot escape an in-
junction just because it is small, and that requiring Bosch
“to compete against its own patented invention” is a
hardship in itself. While that may be true so far as it
goes, the respective impact of an injunction on the parties
is an important equitable consideration, and the impact of
the injunction on each party can be significantly affected
by their respective size and the nature of their business.
That is not to say that the balance of hardships will
necessarily favor Pylon, but only that the considerations
5 ROBERT BOSCH v. PYLON MFG CORP

to which Pylon points are legitimate factors bearing on
the balance of hardships. It is the district court, not this
court, that should consider those factors and weigh them
in the overall equitable balance. To that extent, I respect-
fully dissent.