`
`NOTE: This order is nonprecedential.
`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`VIDSTREAM LLC,
`Plaintiff-Appellant
`
`v.
`
`TWITTER, INC.,
`Defendant-Appellee
`______________________
`
`2024-2265
`______________________
`
`Appeal from the United States District Court for the
`Northern District of Texas in No. 3:16-cv-00764-N, Judge
`David C. Godbey.
`______________________
`
`ON MOTION
`______________________
`
`Before REYNA, LINN, and STOLL, Circuit Judges.
`PER CURIAM.
`
`O R D E R
`VidStream LLC appeals from the district court’s order
`
`denying its motion for a preliminary injunction for failing
`to establish irreparable injury. Twitter, Inc. moves for
`summary affirmance. VidStream opposes.
`
`
`
`
`
`
`
`Case: 24-2265 Document: 20 Page: 2 Filed: 11/19/2024
`
`2
`
`
`
`VIDSTREAM LLC v. TWITTER, INC.
`
`VidStream’s challenge hinges on its argument that
`“the district court here simply had no discretion to require
`additional harm beyond ongoing infringement VidStream
`established.” Opening Br. (ECF No. 11) at 20; see also id.
`at 2 (“According to the principles administered by the
`Court of Chancery at the founding, the likelihood of ongo-
`ing infringement itself constituted irreparable injury.”); id.
`at 8 (“According to these principles, the likelihood of ongo-
`ing infringement itself is irreparable injury.”).
`VidStream’s argument clearly runs afoul of the Su-
`preme Court’s decision in eBay Inc. v. MercExchange,
`L.L.C., 547 U.S. 388, 393 (2006), which rejected such a
`“broad” and “categorical rule” in deciding motions for in-
`junctive relief in the context of patent infringement. See
`Robert Bosch LLC v. Pylon Mfg. Corp., 659 F.3d 1142, 1149
`(Fed. Cir. 2011) (confirming “that eBay jettisoned the pre-
`sumption of irreparable harm” and “abolishe[d] our general
`rule that an injunction normally will issue when a patent
`is found to have been valid and infringed”).
`Given that VidStream’s only challenge in its opening
`brief raises no substantial question regarding the outcome
`of the appeal under governing Supreme Court precedent,
`the court affirms, and finds it appropriate to do so by sum-
`mary order. See Joshua v. United States, 17 F.3d 378, 380
`(Fed. Cir. 1994) (“[S]ummary disposition is appropriate, in-
`ter alia, when the position of one party is so clearly correct
`as a matter of law that no substantial question regarding
`the outcome of the appeal exists.”).1
`
`
`1 VidStream’s opposition to the motion appears to al-
`lege irreparable harm from Twitter’s litigation conduct.
`Such argument was not raised in VidStream’s opening
`brief, and those arguments are waived. See SmithKline
`Beecham Corp. v. Apotex Corp., 439 F.3d 1312, 1319 (Fed.
`
`
`
`
`Case: 24-2265 Document: 20 Page: 3 Filed: 11/19/2024
`
`VIDSTREAM LLC v. TWITTER, INC.
`
` 3
`
`
`
`Accordingly,
`IT IS ORDERED THAT:
`(1) The motion is granted. The order denying a pre-
`liminary injunction is summarily affirmed.
`(2) Each side shall bear its own costs.
`
`
`
`
`
`
`
`November 19, 2024
` Date
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`FOR THE COURT
`
`
`
`
`Cir. 2006) (“Our law is well established that arguments not
`raised in the opening brief are waived.”).
`
`
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