                       NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit
                                        2009-1352

                                 DUHN OIL TOOL, INC.,

                                                  Plaintiff-Appellee,

                                             v.

                         COOPER CAMERON CORPORATION,

                                                  Defendant-Appellant.


         Appeal from the United States District Court for the Eastern District of
         California in case no. 1:05-CV-1411, Senior Judge Oliver W. Wanger.


Before LINN, FRIEDMAN, and MOORE, Circuit Judges.

PER CURIAM.

                                        ORDER

       Cooper Cameron Corp. (“Cameron”) and Duhn Oil Tool, Inc. (“Duhn”) dispute

whether the district court’s April 1, 2009 order is immediately appealable under 28

U.S.C. § 1292. “[I]f the district court’s order expressly grants an injunction, the order is

appealable under § 1292(a)(1), without regard to whether the appellant is able to

demonstrate serious or irreparable consequences.” Cross Med. Prods. v. Medtronic

Sofamor Danek, Inc., 424 F.3d 1293, 1301 (Fed. Cir. 2005) (citation omitted). Here, the

district court’s order is an express injunction. While the court claimed to deny injunctive

relief, it specifically imposed in paragraph 3 an affirmative obligation on Cameron to

“provide instructions to its frac mandrel customers, which unambiguously state that the
lockscrews are not to be engaged during installation or use of the frac mandrel.” Duhn

Oil Tool, Inc. v. Cooper Cameron Corp., No. 05-CV-1411, slip op. at 4-5 (E.D. Cal. Apr.

1, 2009) (“Order”). The court thereby granted part of the relief that Duhn requested—to

prohibit Cameron from further allegedly infringing uses. Even if Cameron previously

volunteered to halt these uses, the order now prevents Cameron from changing its mind

before trial. Therefore, the order is an immediately appealable injunction, and we have

jurisdiction under § 1292(c)(1). See Cross Med., 424 F.3d at 1300.

       In this case, there were insufficient grounds for the court to enjoin Cameron. A

preliminary injunction requires the moving party to show both likelihood of success on

the merits, and irreparable harm unless the injunction issues. See Amazon.com, Inc. v.

Barnesandnoble.com, Inc., 239 F.3d 1343, 1350 (Fed. Cir. 2001). The district court

identified “strongly conflicting evidence” about the possible frequency of Cameron’s

future infringement, and the absence of “a sufficient showing for injunctive relief of the

scope and of the nature, [sic] including the notice requirement that Plaintiffs are

seeking.” Order at 2. Duhn identifies no irreparable harm that it would suffer without

the court’s order, and does not cross-appeal the denial of the broader injunctive relief it

proposed. For these reasons alone, the injunction was improper. Therefore, we decline

Cameron’s invitation to address invalidity and noninfringement in the first instance. See

Sentry Prot. Prods., Inc. v. Eagle Mfg. Co., 400 F.3d 910, 912 (Fed. Cir. 2005) (“[W]e do

not normally decide significant issues for the first time on appeal.”).

       Accordingly,

       IT IS ORDERED THAT:




2009-1352                                     2
       Paragraph 3 of the district court’s order of April 1, 2009 is vacated, and the case

is remanded for further proceedings. No costs.



                                                 FOR THE COURT



 February 19, 2010                                   /s/ Jan Horbaly
Date                                             Jan Horbaly
                                                 Clerk




cc:    James M. Whitelaw
       Charles J. Rogers




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