BlephEx, LLC v. Myco Industries, Inc.

Myco Industries, Inc. (Myco) (defendant) marketed its AB Max product at a tradeshow in February 2019. The AB Max was a device for treating blepharitis, an eye disease that caused a buildup of debris on and around the eyelid. In March 2019, BlephEx, LLC (plaintiff) filed a patent application for an electromechanical device with a swab for the treatment of ocular disorders, including blepharitis. Promptly after the patent’s issuance in October 2019, BlephEx sued Myco for patent infringement. BlephEx sought a preliminary injunction preventing Myco from selling or distributing the AB Max while the suit was pending. Myco argued that a preliminary injunction was improper because BlephEx was unlikely to succeed on the infringement claim at trial due to its patent being invalid. Myco asserted two grounds for invalidity. First, Myco argued that BlephEx’s claimed invention was anticipated by a prior, published patent application known as Nichamin, which described treatment for ocular disorders. One figure in Nichamin showed a wand with a swab soaked in abrasive being used to remove debris from an eyelid. Another figure showed an electromechanical device used to remove debris. Nothing in Nichamin suggested combining the electromechanical device and the swab. Second, Myco argued that attaching the swab to the mechanical device would have been obvious to someone with ordinary skill in the art, namely a doctor who treated ocular disorders, and consequently BlephEx’s claimed invention was not patentable. The district court rejected Myco’s arguments and issued BlephEx’s requested preliminary injunction. Myco appealed.