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Myco Industries, Inc. v. Blephex, LLC

United States District Court, E.D. Michigan, Southern Division

August 27, 2019

Myco Industries, Inc., Plaintiff,
v.
Blephex, LLC, Defendant.

         OPINION AND ORDER GRANTING PLAINTIFF'S AMENDED MOTION FOR PRELIMINARY INJUNCTION [#11], DENYING DEFENDANT'S MOTION FOR LEAVE TO FILE SUPPLEMENTAL BRIEF IN OPPOSITION TO PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION [#35], DENYING PLAINTIFF'S MOTION FOR LEAVE TO SUPPLEMENT PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION [#36], AND DENYING PLAINTIFF'S MOTION TO CONSOLIDATE PRELIMINARY INJUNCTION HEARING WITH TRIAL [#54] AS MOOT

          Hon. Gershwin A. Drain, United States District Court Judge.

         I. Introduction

         Before the Court is Plaintiff's Amended Motion for Preliminary Injunction. Plaintiff requests this Court to enjoin Defendant from making allegations of patent infringement and from threatening litigation against potential customers of Plaintiff. Pursuant to E.D. Mich. LR 7.1(f)(2), this Court has determined that oral argument is not necessary in order to rule on this Motion. For the reasons discussed below, this Court will grant Plaintiff's Amended Motion for Preliminary Injunction. Defendant, its officers, agents, and those in active concert with it are enjoined from making allegations of patent infringement and threatening litigation against Plaintiff's potential customers. Both parties in this matter also filed Motions for Leave to Supplement their preliminary injunction pleadings. This Court will deny both Motions to Supplement. Lastly, Plaintiff filed a Motion to Consolidate Preliminary Injunction Hearing with Trial. The Court will deny this Motion as moot.

         II. Factual Background

         Plaintiff Myco Industries, Inc. (“Myco”) is a corporation organized and existing under the laws of Michigan. Dkt. No. 9, pg. 2 (Pg. ID 24). Defendant BlephEx, LLC (“BlephEx”) is a corporation organized under the laws of Florida with its principal place of business located in Tennessee. Id. Mr. John Choate is Myco's Chairman. Dkt. No. 20, pg. 9 (Pg. ID 1184). Dr. James Rynerson is BlephEx's owner and President. Id.

         In August of 2012, Dr. Rynerson sought out Mr. Choate to design and develop a prototype for a device that could treat blepharitis. Id. at pg. 10 (Pg. ID 1185). Blepharitis is an eyelid disease characterized by the inflammation, scaling, reddening, and crusting of the eyelid, creating dandruff-like scales on the eyelashes. Dkt. No. 9, pg. 3 (Pg. ID 25); Dkt. No. 20, pg. 10 (Pg. ID 1185). Blepharitis can be anterior or posterior. Anterior blepharitis affects the front edge of the eyelid where the eyelashes join it, and posterior blepharitis affects the inner edge of the eyelid. Id.

         Rynerson and Choate formed RySurg LLC (“RySurg”), a Michigan company and the BlephEx's company's predecessor. Id. at pg. 10 (Pg. ID 1185). Mr. Choate modified Dr. Rynerson's device design, developed a prototype, and oversaw the manufacture and commercialization of the final product, named the Blephex. Id. The Blephex removes debris from the eyelid using the ‘718 patent method. Id. at pg. 11 (Pg. ID 1186).

         Dr. Rynerson initially filed a patent on July 24, 2012 to patent the Blephex. Dkt. No. 11-7, pg. 150 (Pg. ID 720). On September 19, 2014, The Patent and Trademark Office (“PTO”) rejected Dr. Rynerson's first patent application for the Blephex because it was infringing on a patent that named Grenon as the inventor (the “Grenon patent”). Dkt. No. 11-7, pg. 150 (Pg. ID 720). The PTO corresponded with Dr. Rynerson's representatives to discuss the difference between Rynerson's Blephex and the Grenon patent. Dkt. No. 11-7, pg. 179 (Pg. ID 749). Rynerson's representatives maintained that the Blephex contacts the inner surface of the eyelid or eyelid margin. Id. The PTO agreed that the claim limitation of contacting the inner surface of the eyelid was adequate to differentiate the Blephex from the Grenon patent. Id.

         Dr. Rynerson obtained the patent for the Blephex (“the ‘718 patent”) on May 26, 2015. Dkt. No. 11-6, pg. 2 (Pg. ID 562). It is a process, i.e. “method” patent. See Id. The patent does not state that it only treats posterior blepharitis. See Dkt. No. 11-6. The patent also never states the terms “anterior” or “posterior.” However, the patent consistently states that the Blephex is for use with the “inner edge portion of the eyelid margin.” See Dkt. No. 11-6, pg. 9 (Pg. ID 569) (“the swab having at least a portion thereof configured to access an inner edge portion of the eyelid margin . . . the swab . . . contacting a portion of the eye between the eyelashes and the inner edge of the eyelid margin . . . the method of claim 1 further comprising accessing at least an inner edge portion of the eyelid margin with swab . . . the method of claim 14 further comprising accessing at least an inner edge portion of the eyelid margin with swab . . . while the swab is being moved by the electromechanical device, contacting at least an inner edge portion of the eyelid margin”). Claim 1 of the patent states that what is claimed is:

A method of treating an eye for an ocular disorder with a swab operably connected to an electromechanical device, wherein the eye has an eyelid margin and includes a removable debris, the method comprising; effecting movement of the swab relative to the electromechanical device, the swab having at least a portion thereof configured to access an inner edge portion of the eyelid margin; while the swab is being moved by the electromechanical device, contacting a portion of the eye between the eyelashes and the inner edge of the eyelid margin that includes the removable debris with the swab thereby impacting the debris with the swab to remove debris from the eye.

Dkt. No. 11-6, pg. 9 (Pg. ID 569). The Blephex went to market in 2013. Id. Mr. Choate was employed by and served as President of RySurg from December 2012 until January 2014. Dkt. No. 10, pg. 16 (Pg. ID 64). Choate and Rynerson ended their partnership due to financial conflicts. Id. Dr. Rynerson then formed BlephEx, LLC to market the Blephex.

         BlephEx now sells the Blephex treatment device that is used by healthcare professionals for the treatment of blepharitis. Dkt. No. 15, pg. 13 (Pg. ID 975).

         From February 20-24 of 2019, both BlephEx and Myco attended the Southern Educational Congress of Optometry (“SECO”) conference in New Orleans, Louisiana. Dkt. No. 10, pg. 17 (Pg. ID 65). The SECO conference allows companies to promote and display their goods and service to thousands of optometric professionals from around the world. Id. Myco began marketing its AB Max tool in 2019 at the SECO conference. Id. Plaintiff asserts that the AB Max is a device intended for the treatment of anterior blepharitis only. Id. at pg. 25 (Pg. ID 73). Myco showed the AB Max tool and handed out materials explaining the AB Max's functionality and use at the conference. Id. According to Plaintiff, Dr. Rynerson approached the Myco booth at the conference and stated that the AB Max infringes on his Blephex patent. Id. at pg. 18 (Pg. ID 66). Dr. Rynerson allegedly made this accusation loudly and within earshot of prospective customers. Id. Plaintiff alleges that Dr. Rynerson returned to his BlephEx booth and told optometrists that Myco's AB Max was infringing on his patents and that he would take action. Id. at pg. 19 (Pg. ID 67).

         According to Dr. Rynerson, he approached the Myco booth at the SECO conference and asked Choate if he thought the AB Max might infringe Rynerson's patent. Dkt. No. 15-1, pg. 5 (Pg. ID 996). Rynerson asserts that he did not threaten to sue anyone for patent infringement. Id. He further states that to the best of his recollection, he did not tell doctors and practitioners visiting the BlephEx booth that the AB Max infringed on his patent. Id. at pg. 15 (Pg. ID 977).

         On March 4, 2019, Plaintiff filed a complaint in this Court. Dkt. No. 1. Plaintiff filed an amended complaint on March 14, 2019. Dkt. No. 14. The amended complaint requests a declaratory judgment of non-infringement, a declaratory judgment of invalidity of the ‘718 patent, and asserts federal and common law unfair competition claims. Id. On March 18, 2019, Plaintiff filed the present Amended Motion for Preliminary Injunction to enjoin Defendant from making patent infringement allegations and threatening litigation against Plaintiff's potential customers. Dkt. No. 11. Defendant opposed the Motion on April 8, 2019. Dkt. No. 17. Plaintiff replied on April 22, 2019. Dkt. No. 19.

         Both parties have moved this Court for leave to file supplemental briefs to support the arguments that they presented in Plaintiff's Motion for Preliminary Injunction. On June 26, 2019, Defendant filed its Motion for Leave. Dkt. No. 35. On July 2, 2019, Plaintiff filed its Motion for Leave. Dkt. No. 36. Both parties filed responses to the other's Motion for Leave on July 10, 2019 and July 16, 2019. Dkt. Nos. 43, 46. The parties filed replies to the Motions for Leave on July 16, 2019 and July 23, 2019. Dkt. Nos. 47, 48. Neither party has shown good cause for filing supplemental briefs on this issue. Further, the Court has reviewed the parties' supplemental pleadings and finds that they are not necessary to consider in its determination of Plaintiff's Motion for Preliminary Injunction. Correspondingly, the Court will deny the parties' Motions for Leave to Supplement.

         On August 20, 2019 Plaintiff filed a Motion to Consolidate Preliminary Injunction Hearing with Trial. Dkt. No. 54. Plaintiff states in its Motion that it sought concurrence with Defendant but Defendant did not concur. Id. at pg. 5 (Pg. ID 2013). Defendant has not yet filed a response to Plaintiff's Motion to Consolidate. For the reasons discussed below, this Court will grant Plaintiff's preliminary injunction. Therefore, Plaintiff's Motion to Consolidate is moot and this Court will accordingly deny the Motion to Consolidate.

         III. Legal Standard

         “A preliminary injunction is an extraordinary measure that has been characterized as ‘one of the most drastic tools in the arsenal of judicial remedies.'” Bonnell v. Lorenzo, 241 F.3d 800, 808 (6th Cir. 2001) (quoting Hanson Trust PLC v. ML SCM Acquisition Inc., 781 F.2d 264, 273 (2d Cir. 1986)). A preliminary injunction seeks to “maintain the status quo pending a final hearing regarding the parties' rights.” All. for Mentally Ill. of Mich. v. Dep't of Cmty. Health, 588 N.W.2d 133, 137 (Mich. Ct. App. 1998). Whether to grant such relief is a matter within the discretion of the district court. See Certified Restoration Dry Cleaning Network, L.L.C. v. Tenke Corp., 511 F.3d 535, 540-41 (6th Cir. 2007). The Court must balance four factors in determining whether to grant a request for a preliminary injunction. Id. at 542. Those factors are:

(1) whether the movant has a strong likelihood of success on the merits;
(2) whether the movant would suffer irreparable injury without the injunction;
(3) whether issuance of the injunction would cause substantial harm to others; and
(4) whether the public interest would be served by the issuance of ...

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