Case: 24-2265 Document: 5 Page: 1 Filed: 09/04/2024
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`No. 2024-2265
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`UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT
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`VIDSTREAM LLC,
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`v.
`TWITTER, INC.,
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`Plaintiff-Appellant,
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`Defendant-Appellee.
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`On Appeal from the United States District Court for The Northern District of
`Texas in Case No. 3:16-cv-00764-N, Judge David C. Godbey
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`APPELLEE TWITTER, INC.’S MOTION FOR SUMMARY AFFIRMANCE
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`Pursuant to Federal Rules of Appellate Procedure 2 and 27, Appellee Twitter,
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`Inc. respectfully requests that this Court summarily affirm the district court’s ruling
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`denying Appellant VidStream LLC’s request for a preliminary injunction.
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`VidStream opposes this motion and will file a response.
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`This appeal involves VidStream’s January 2024 request for a preliminary
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`injunction in a case that was filed against Twitter in March 2016.1 VidStream’s
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`motion was flawed for numerous reasons, but this Court only needs to address one
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`of them: VidStream’s manifest failure to show irreparable harm. Put simply,
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`1 In the eight years since this litigation began, Twitter, Inc. merged into X Corp. and
`Twitter’s platform is now known as “X.” For the purposes of consistency, Twitter
`continues to refer to its platform here as “Twitter.”
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`Case: 24-2265 Document: 5 Page: 2 Filed: 09/04/2024
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`VidStream’s “entire irreparable harm argument relies on an unsubstantiated rule” of
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`law—i.e., that irreparable harm can be presumed if the plaintiff establishes a
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`likelihood of success on the merits and defendant’s infringement is ongoing. See
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`Mot. Addendum (“Add.”) at 4 (emphasis added).2 In truth, VidStream’s approach
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`is not just “unsubstantiated” but impossible to square with binding precedent that
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`expressly rejects the use of a “presumption of irreparable harm” based on a
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`likelihood of success on the merits. See Robert Bosch LLC v. Pylon Manufacturing
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`Corp., 659 F.3d 1142, 1148-1149 (Fed. Cir. 2011) (discussing eBay v.
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`MercExchange, L.L.C., 547 U.S. 388, 393-394 (2006)). In light of Robert Bosch,
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`the district court’s ruling is “so clearly correct as a matter of law that no substantial
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`question regarding the outcome of the appeal exists.” Joshua v. United States, 17
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`F.3d 378, 380 (Fed. Cir. 1994). The district court’s decision should accordingly be
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`summarily affirmed.3
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`BACKGROUND
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`VidStream is “a nonpracticing entity,” Add. at 2, that acquired the remaining
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`patents in this litigation after the original owner (YouToo Technologies) went
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`2 Twitter attaches the district court’s opinion in the addendum to this filing. The
`opinion also appears at C.A. Dkt. 1-2 at 45-49.
`3 To the extent that this Court does not summarily affirm on this issue, Twitter’s
`merits brief will discuss each of the many alternative grounds for affirmance—
`including the fact that VidStream delayed for years in filing its preliminary
`injunction request.
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`2
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`Case: 24-2265 Document: 5 Page: 3 Filed: 09/04/2024
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`bankrupt in late 2017, D. Ct. Dkt. 153 at 2-3. While the litigation itself remained
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`stayed for two more years after YouToo’s bankruptcy (because VidStream failed to
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`timely notify the Court regarding its acquisition), VidStream appeared and
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`participated in parallel Patent Office proceedings and on appeal. VidStream LLC v.
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`Twitter, Inc., 981 F.3d 1060, 1062 & n.1 (Fed. Cir. 2020); see also D. Ct. Dkt. 153
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`at 2-3; D. Ct. Dkt. 154 at 24. In March 2020, VidStream at long last filed a motion
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`to substitute itself as Plaintiff and for reconsideration of a prior Section 101 ruling.
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`D. Ct. Dkts 153, 155. The district court granted those requests in April 2021. See
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`VidStream, LLC v. Twitter, Inc., 2022 WL 992743, at *1 (N.D. Tex. Apr. 1, 2022).
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`VidStream filed its motion for a preliminary injunction on January 9, 2024. Add. at
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`2.
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`The district court summarily rejected VidStream’s requested injunction
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`because VidStream failed to “make a sufficient showing of irreparable injury.” Add.
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`at 1. VidStream’s sole irreparable harm theory—that “purported ongoing
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`infringement on a patent constitutes irreparable harm”—relied on “the practices of
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`the Eighteenth Century English Court of Chancery,” but VidStream did “not cite any
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`post eBay cases that apply the same principles.” Add. at 2-3. Because post-eBay
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`case law imposed “‘the burden … on the patentee to demonstrate that its potential
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`losses cannot be compensated by monetary damages’” and VidStream made no
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`attempt to carry that burden, the requested injunction was denied. Add. at 4.
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`3
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`

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`Case: 24-2265 Document: 5 Page: 4 Filed: 09/04/2024
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`ARGUMENT
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`Summary affirmance is appropriate where “‘no substantial question regarding
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`the outcome of the appeal exists,’” such as when this Court’s binding case law
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`“expressly reject[s]” the appellant’s arguments. See Security People, Inc. v. Lee,
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`2017 WL 1963332, at *1 (Fed. Cir. Feb. 23, 2017) (nonprecedential) (quoting
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`Joshua, 17 F.3d at 380)); see also Public Patent Foundation, Inc. v. McNeil-PPC,
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`Inc., 2013 WL 7150063, at *1 (Fed. Cir. May 3, 2013) (nonprecedential) (similar).
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`Here, as in Security People and Public Patent, existing case law precludes
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`VidStream’s “unsubstantiated” (and only) theory of irreparable harm. See Add. at
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`4.
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`“A preliminary injunction is an extraordinary remedy never awarded as of
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`right.” Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 24 (2008).
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`Accordingly, a party “seeking preliminary relief” must “demonstrate that irreparable
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`injury is likely in the absence of an injunction.” Id. at 22 (emphasis in original).
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`Prior to the Supreme Court’s decision in eBay, however, this Court followed a
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`different rule, “appl[ying] an express presumption of irreparable harm upon finding
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`that a plaintiff was likely to succeed on the merits of a patent infringement claim.”
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`Robert Bosch, 659 F.3d at 1148. eBay fundamentally changed the terrain, holding
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`that such “‘categorical rule[s]’ have no place in th[e injunction] inquiry.” Id.
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`4
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`

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`Case: 24-2265 Document: 5 Page: 5 Filed: 09/04/2024
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`While there was a period of time following eBay when this Court and district
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`courts expressed uncertainty about whether the presumption of irreparable harm
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`remained good law, this Court “put the question to rest” in Robert Bosch. 659 F.3d
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`at 1148-1149. The Robert Bosch Court took the “opportunity to … confirm that
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`eBay jettisoned the presumption of irreparable harm as it applies to determining the
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`appropriateness of injunctive relief.” Id. at 1149. In short, “eBay abolishes our
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`general rule that an injunction normally will issue when a patent is found to have
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`been valid and infringed.” Id.4
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`VidStream’s position—that “irreparable harm is established where ‘Plaintiff
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`has established that it is likely to succeed on the merits and also because the
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`Defendant’s infringement is ongoing,’” Add. at 4—is simply another way of saying
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`irreparable harm can be presumed if the patentee establishes it is likely to prevail on
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`infringement. That cannot be squared with this Court’s crystal-clear statement in
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`Robert Bosch. Indeed, when Twitter cited Robert Bosch in its preliminary injunction
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`4 While the district court’s decision relied on Automated Merchandising Systems,
`Inc. v. Crane Co., 357 F. App’x 297, 301 (Fed. Cir. 2009) (nonprecedential) for this
`basic point, Add. at 4, Robert Bosch confirms that Automated Merchandising stands
`for the same principle, see Robert Bosch, 659 F.3d at 1149 n.4.
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`5
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`Case: 24-2265 Document: 5 Page: 6 Filed: 09/04/2024
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`opposition, VidStream had no answer at all; its reply brief simply ignored this
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`Court’s binding decision.5
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`CONCLUSION
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`For the foregoing reasons, Twitter respectfully requests that this Court
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`summarily affirm the district court’s ruling.
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`Dated: September 4, 2024
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`Respectfully submitted,
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`/s/ Thomas G. Sprankling
`SONAL N. MEHTA
`THOMAS G. SPRANKLING
`WILMER CUTLER PICKERING
` HALE AND DORR LLP
`2600 El Camino Real, Suite 400
`Palo Alto, CA 94306
`(650) 858-6000
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`Counsel for Appellee Twitter, Inc.
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`5 Before the district court, VidStream denied that it was advocating for a rule that
`would require irreparable harm to be automatically found where the likelihood of
`success factor was met. But it did not deny that it was advocating for a presumption
`of irreparable harm that could be rebutted (e.g., for public interest reasons)—i.e., a
`presumption that both the Supreme Court and this Court have already rejected.
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`6
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`Case: 24-2265 Document: 5 Page: 7 Filed: 09/04/2024
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`CERTIFICATE OF INTEREST
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`Counsel for Appellee Twitter, Inc. certifies the following:
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`Represented Entities. Fed. Cir. R. 47.4(a)(1). Provide the full names
`1.
`of all entities represented by undersigned counsel in this case.
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`Twitter, Inc.
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`Real Party in Interest. Fed. Cir. R. 47.4(a)(2). Provide the full names
`2.
`of all real parties in interest for the entities. Do not list the real parties if they are the
`same as the entities.
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`X Corp.
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`Parent Corporations and Stockholders. Fed. Cir. R. 47.4(a)(3).
`3.
`Provide the full names of all parent corporations for the entities and all publicly held
`companies that own 10% or more stock in the entities.
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`X Corp. is a privately held corporation. Its parent corporation is X Holdings
`Corp. No publicly traded corporation owns 10% or more of the stock of X
`Corp. or X Holdings Corp.
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`Case: 24-2265 Document: 5 Page: 8 Filed: 09/04/2024
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`Legal Representatives. List all law firms, partners, and associates that
`4.
`(a) appeared for the entities in the originating court or agency or (b) are expected to
`appear in this court for the entities. Do not include those who have already entered
`an appearance in this court. Fed. Cir. R. 47.4(a)(4).
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`WILMER CUTLER PICKERING HALE AND DORR LLP: Scott W. Bertulli, Rachel S.
`Bier, Sydney E. Donovan, Kim U. Do (former), Reshma C. Gogineni, J. Taylor
`Gooch, Matthew T. Martens, Nora Q.E. Passamaneck
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`HAYNES AND BOONE LLP: Charles M. Jones II, David L. McCombs
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`DURIE TANGRI LLP: Laura E. Miller (former), James Tsuei (former)
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`Related Cases. Other than the originating case(s) for this case, are
`5.
`there related or prior cases that meet the criteria under Fed. Cir. R. 47.5(a)?
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`x Yes (file separate notice; see below)
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`If yes, concurrently file a separate Notice of Related Case Information that complies
`with Fed. Cir. R. 47.5(b). Please do not duplicate information. This separate Notice
`must only be filed with the first Certificate of Interest or, subsequently, if
`information changes during the pendency of the appeal. Fed. Cir. R. 47.5(b).
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` No
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` N/A (amicus/movant)
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`Organizational Victims and Bankruptcy Cases. Provide any
`6.
`information required under Fed. R. App. P. 26.1(b) (organizational victims in
`criminal cases) and 26.1(c) (bankruptcy case debtors and trustees). Fed. Cir. R.
`47.4(a)(6).
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`None.
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`Dated: September 4, 2024
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`/s/ Thomas G. Sprankling
`SONAL N. MEHTA
`THOMAS G. SPRANKLING
`WILMER CUTLER PICKERING
` HALE AND DORR LLP
`2600 El Camino Real, Suite 400
`Palo Alto, CA 94306
`(650) 858-6000
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`Case: 24-2265 Document: 5 Page: 9 Filed: 09/04/2024
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`CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME
`LIMITATIONS
`The foregoing filing complies with the relevant type-volume limitation of the
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`Federal Rules of Appellate Procedure and Federal Circuit Rules because:
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`1.
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`The filing has been prepared using a proportionally spaced typeface and
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`includes 1,145 words.
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`2.
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`The foregoing has been prepared using Microsoft Word for Office 365
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`in 14-point Times New Roman font. As permitted by Fed. R. App. P. 32(g), the
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`undersigned has relied upon the word count feature of this word processing system
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`in preparing this certificate.
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`/s/ Thomas G. Sprankling
`SONAL N. MEHTA
`THOMAS G. SPRANKLING
`WILMER CUTLER PICKERING
` HALE AND DORR LLP
`2600 El Camino Real, Suite 400
`Palo Alto, CA 94306
`(650) 858-6000
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`September 4, 2024
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`Case: 24-2265 Document: 5 Page: 10 Filed: 09/04/2024
`Case: 24-2265 Page:10_Filed: 09/04/2024Document:5
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`ADDENDUM
`ADDENDUM
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`Case: 24-2265 Document: 5 Page: 11 Filed: 09/04/2024
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`TABLE OF CONTENTS
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` Page(s)
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`Memorandum Opinion & Order Denying Motion for
`Preliminary Injunction, Dkt. No. 323 (July 22, 2024) ............................. Add. 1-5
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`i
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`Case: 24-2265 Document: 5 Page: 12 Filed: 09/04/2024
`Case 3:16-cv-00764-N Document 323 Filed 07/22/24 Page 1 of 5 PageID 12708
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`IN THE UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF TEXAS
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`DALLAS DIVISION
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`§
`§
`§
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`§
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`Civil Action No. 3:16-CV-0764-N
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`VIDSTREAM, LLC ,
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`Plaintiff,
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`TWITTER, INC.,
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`Defendant.
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`MEMORANDUM OPINION AND ORDER
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`This Order Addresses Plaintiff Vidstream LLC’s (“VidStream”) motion for
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`preliminary injunction [260]. Because VidStream fails to make a sufficient showing of
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`irreparable injury, the Court denies the motion.
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`I. ORIGINS OF THE DISPUTE
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`This case arises from the alleged infringement of U.S. Patent No. 8,464,304 (“the
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`’304 Patent”). The patents cover a system of receiving and distributing user-generated
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`video content for distribution on television broadcasts and the internet. VidStream’s
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`predecessor, Youtoo Technologies, alleged Twitter infringed the ’304 Patent though its
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`video creation and distribution in its application. The long procedural history of this case
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`is well established, see, e.g., VidStream, LLC v. Twitter, Inc., 2022 WL 992743 (N.D. Tex.
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`Apr. 1, 2022), and the Court will not recount it in great depth here. Importantly, the Court
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`substituted VidStream as plaintiff on April 19, 2021, and granted VidStream leave to file
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`its Second Amended Complaint (“SAC”). Order [190]. After the Court denied Twitter’s
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`motion to dismiss VidStream’s SAC, see Order [199] at 7–8, parties re-started discovery.
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`MEMORANDUM OPINION AND ORDER – PAGE 1
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`Add. 1
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`Case 3:16-cv-00764-N Document 323 Filed 07/22/24 Page 2 of 5 PageID 12709
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`As part of discovery, VidStream asked Twitter on May 17, 2022, to describe “any
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`difficulties” Twitter would encounter by being “required to comply with an injunction.”
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`Pl.’s Mot. App., Ex. 3, 52 [265]. On January 9, 2024, VidStream filed its motion for a
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`preliminary injunction asking the Court to enjoin Twitter’s use of the infringing features in
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`dispute in this case.
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`II. THE COURT DENIES VIDSTREAM’S MOTION FOR
`PRELIMINARY INJUNCTION
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`“The prerequisites for preliminary injunctive relief are long-established in this
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`circuit.” Libertarian Party of Tex. v. Fainter, 741 F.2d 728, 729 (5th Cir. 1984). The
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`movant must establish that: (1) it is likely to succeed on the merits; (2) it is likely to suffer
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`irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in its
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`favor; and (4) an injunction is in the public interest. Tex. Midstream Gas Servs., LLC. v.
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`City of Grand Prairie, 608 F.3d 200, 206 (5th Cir. 2010) (citation omitted). The party
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`seeking the preliminary injunction bears the burden of persuasion on all four requirements.
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`Bluefield Water Ass’n, Inc. v. City of Starkville, Miss., 577 F.3d 250, 253 (5th Cir. 2009).
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`The Court denies VidStream’s motion for preliminary injunction because VidStream fails
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`to demonstrate irreparable harm.
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`VidStream is a nonpracticing entity. The Supreme Court rejected a per se rule “that
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`a court of equity has no jurisdiction to grant injunctive relief to a patent holder who has
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`unreasonably declined to use the patent.” eBay Inc. v. MercExchange, L.L.C., 547 U.S.
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`388, 393 (2006) (citing Continental Paper Bag Co. v. Eastern Paper Bag Co., 210 U.S.
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`405, 422–430 (1908)). Conversely, the Supreme Court in eBay did not create a per se rule
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`MEMORANDUM OPINION AND ORDER – PAGE 2
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`Add. 2
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`that purported ongoing infringement on a patent constitutes irreparable harm as VidStream
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`suggests in its motion. Pl.’s Mot. 11. VidStream, quoting eBay, asserts, “that the decision
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`whether to grant or deny injunctive relief rests within the equitable discretion of the district
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`courts, and that such discretion must be exercised consistent with traditional principles of
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`equity . . . .” Id. (quoting eBay, 547 U.S. at 394). Still, instead of looking forward to how
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`the Federal Circuit and district courts have applied this language from eBay, VidStream
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`takes a backward-looking approach, citing the practices of the Eighteenth Century English
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`Court of Chancery. See generally id. at 11–18. VidStream does not cite any post eBay
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`cases that apply the same principles. Id.
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`The Supreme Court in eBay vacated the judgment of the Court of Appeals and
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`remanded the case. eBay, 547 U.S. at 392. The Federal Circuit, in turn, remanded the case
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`to the district court so “as to enable the district court to apply the proper framework for
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`considering injunctive relief ‘in the first instance.’” MercExchange, L.L.C. v. eBay, Inc.,
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`188 F. App’x 993 (Fed. Cir. 2006) (“MercExchange I”). In its application of the Supreme
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`Court’s framework, the district court explained that “taking a page from history, it is
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`apparent that the Federal Circuit has repeatedly recognized that ‘the lack of commercial
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`activity by the patentee is a significant factor in the calculus’ of whether the patentee will
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`suffer irreparable harm absent an injunction.” MercExchange, L.L.C. v. eBay, Inc., 500 F.
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`Supp. 2d 556, 570–71 (E.D. Va. 2007) (“MercExchange II) (quoting High Tech Medical
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`Instrumentation, Inc. v. New Image Indus., Inc., 49 F.3d 1551, 1556 (Fed. Cir. 1995)
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`(emphasis added)). The district court stated that a plaintiff’s “lack of commercial
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`activity . . . does not eliminate [a plaintiff’s] ability to establish irreparable harm, but it
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`MEMORANDUM OPINION AND ORDER – PAGE 3
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`Add. 3
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`weighs against the need for an equitable remedy as it evidences [ a plaintiff’s] willingness
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`to forgo its right to exclude in return for money.” MercExchange II, 500 F. Supp. 2d at
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`571.
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`Under this precedent, VidStream has the burden to demonstrate why Twitter’s
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`purported infringement cannot be compensated with monetary damages. See Automated
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`Merchandising Sys., Inc. v. Crane Co., 357 Fed. App’x 297, 301 (Fed. Cir. 2009) (post-
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`eBay “[t]he burden is now on the patentee to demonstrate that its potential losses cannot be
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`compensated by monetary damages”). VidStream fails to meet this burden. VidStream’s
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`entire irreparable harm argument relies on an unsubstantiated rule that a likelihood of
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`irreparable harm is established where “Plaintiff has established that it is likely to succeed
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`on the merits and also because the Defendant’s infringement is ongoing . . . .” Pl.’s Mot.
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`22. Because VidStream fails to carry its burden of showing that its purported infringement
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`cannot be compensated by monetary damages, VidStream fails to demonstrate irreparable
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`harm.
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`CONCLUSION
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`For the foregoing reasons, VidStream failed to carry its burden of showing why a
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`preliminary injunction should be issued in this case. Therefore, the Court denies
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`VidStream’s motion for a preliminary injunction.
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`MEMORANDUM OPINION AND ORDER – PAGE 4
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`Add. 4
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`Signed July 22, 2024.
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`David C. Godbey
`Chief United States District Judge
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`MEMORANDUM OPINION AND ORDER – PAGE 5
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`Add. 5
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