Case: 17-1328 Document: 21 Page: 1 Filed: 01/05/2017
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`NOTE: This order is nonprecedential.
`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`BRAGEL INTERNATIONAL, INC.,
`Plaintiff-Appellee
`
`v.
`
`STYLES FOR LESS, INC.,
`Defendant-Appellant
`
`PPI APPAREL GROUP, INC.,
`Defendant
`______________________
`
`2017-1328
`______________________
`
`Appeal from the United States District Court for the
`Central District of California in No. 8:15-cv-01756-R-
`FFM, Judge Manuel L. Real.
`---------------------------------------------------------------------------------
`
`
`BRAGEL INTERNATIONAL, INC.,
`Plaintiff-Appellee
`
`v.
`
`CHARLOTTE RUSSE, INC.,
`Defendant-Appellant
`
`PPI APPAREL GROUP, INC.,
`Defendant
`
`

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`Case: 17-1328 Document: 21 Page: 2 Filed: 01/05/2017
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` BRAGEL INTERNATIONAL, INC. v. STYLES FOR LESS, INC.
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`______________________
`
`2017-1343
`______________________
`
`Appeal from the United States District Court for the
`Central District of California in No. 2:15-cv-08364-R-
`FFM, Judge Manuel L. Real.
`______________________
`
`ON MOTION
`______________________
`Before LOURIE, LINN, and TARANTO, Circuit Judges.
`LINN, Circuit Judge.
`
`O R D E R
`Styles For Less, Inc. and Charlotte Russe, Inc. sepa-
`rately move for an order vacating and remanding the
`preliminary injunctions issued by the United States
`District Court for the Central District of California.
`Bragel International, Inc. opposes the motions. Styles For
`Less and Charlotte Russe reply.
`Bragel and PPI Apparel Group, Inc. both design,
`manufacture, and distribute strapless bras and attachable
`breast-form systems, which are intended to be worn in
`lieu of a traditional bra.* PPI distributes its breast-form
`systems to retailers like Styles For Less and Charlotte
`Russe which then offer to sell them to consumers.
`
`
`* Bragel filed two lawsuits, one against PPI and Styles
`For Less and one against PPI and Charlotte Russe.
`Because the fact patterns and orders are essentially
`identical and Styles For Less and Charlotte Russe are
`represented by the same counsel, the appeals have been
`consolidated.
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`

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`Case: 17-1328 Document: 21 Page: 3 Filed: 01/05/2017
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`BRAGEL INTERNATIONAL, INC. v. STYLES FOR LESS, INC.
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`Bragel owns a patent on an improved backless, strap-
`less breast-form system, U.S. Patent No. 7,144,296.
`Claim 1 of the patent, from which all the asserted claims
`depend, recites a pair of breast forms, wherein each
`breast form comprises a volume of silicone gel encased
`between thermoplastic film material; a concave interior
`surface facing towards a user’s breast having a pressure-
`sensitive adhesive layer for securing the breast form to
`the user’s breast; and a connector adapted to adjoin the
`breast forms together, wherein the connector is positioned
`between inner sides of each of the breast forms.
`Bragel brought these suits alleging that PPI, Styles
`For Less, and Charlotte Russe infringed its patent. The
`parties each moved for summary judgment on a number
`of issues. Defendants sought, in relevant part, summary
`judgment declaring that the claims were obvious in light
`of a combination of several prior art references. Among
`other things, defendants argued that U.S. Patent No.
`5,755,611 (“Noble”) had disclosed each feature of claim 1
`except for the use of a silicone gel for the bra cup and
`submitted an expert declaration explaining why it would
`have been obvious to combine Noble with a known sili-
`cone-containing breast form to create a self-adhesive
`silicone backless strapless bra with a center connector.
`The district court granted summary judgment for
`Bragel on the issue of infringement and denied defend-
`ants’ requests for summary judgment. Addressing the
`obviousness challenge, the district court stated that “[t]he
`obviousness argument is the same argument raised by the
`patent examiner during the prosecution of the parent
`application to the patent-in-suit. Ultimately, the patent
`examiner discarded such an argument and found the
`patent valid.” On December 2, 2016, the court granted
`Bragel’s motions for preliminary injunctions. On likeli-
`hood of success, the district court’s injunction orders
`stated only that Styles For Less’s and Charlotte Russe’s
`“attempts to re-litigate issues previously decided in the
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`Case: 17-1328 Document: 21 Page: 4 Filed: 01/05/2017
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` BRAGEL INTERNATIONAL, INC. v. STYLES FOR LESS, INC.
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`summary judgment order[s] are ineffective” and that
`“[t]his Court held that the . . . invalidity arguments have
`‘no merit.’”
`court
`the
`injunction,
`interlocutory
`
`For
`an
`“must . . . state the findings and conclusions that support
`its action.” Fed. R. Civ. P. 52(a)(2). “It is of the highest
`importance to a proper review of the action of a court in
`granting or refusing a preliminary injunction that there
`should be fair compliance with Rule 52(a) of the Rules of
`Civil Procedure . . . .” Mayo v. Lakeland Highlands
`Canning Co., 309 U.S. 310, 316 (1940); see also Diouf v.
`Mukasey, 542 F.3d 1222, 1235 n.7 (9th Cir. 2008); Nutri-
`tion 21 v. United States, 930 F.2d 867, 869 (Fed. Cir.
`1991) (“Sufficient factual findings on the material issues
`are necessary to allow this court to have a basis for mean-
`ingful review.”). Absent appropriate findings, the normal
`course is to vacate the district court’s decision and re-
`mand the matter for a proper analysis. See Pretty Punch
`Shoppettes, Inc. v. Hauk, 844 F.2d 782, 784 (Fed. Cir.
`1988) (“[T]he trial court must provide sufficient factual
`findings such that we may meaningfully review the
`merits of its order.”).
`
`This court has also applied that standard in summari-
`ly disposing of a preliminary injunction order that failed
`to satisfy the requirements of Rule 52(a). In Sciele Phar-
`ma Inc. v. Lupin Ltd., for instance, the defendant argued
`that prior art references that had been before the patent
`examiner raised a substantial question of invalidity. 2012
`U.S. App. LEXIS 2442 (Fed. Cir. Feb. 6, 2012). The
`district court rejected defendant’s argument and granted
`an injunction relying almost entirely on the presumption
`of validity. In vacating the injunction, this court noted
`that the district court “did not make any findings of fact
`or any conclusions of law regarding Lupin’s obviousness
`arguments.” Id. at *2–3. This court further explained
`that the “fact that prior art was before the PTO can not be
`the only reason to reject an obviousness defense,” and
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`Case: 17-1328 Document: 21 Page: 5 Filed: 01/05/2017
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`BRAGEL INTERNATIONAL, INC. v. STYLES FOR LESS, INC.
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`that the defendant “is entitled to have the district court
`make an independent assessment of its defense and apply
`the proper burden of proof.” Id.
`
`As in the injunction order in Sciele, the district court’s
`injunction orders in the instant cases make no more than
`passing references to Styles For Less’s and Charlotte
`Russe’s invalidity challenges, finding only that Styles For
`Less’s and Charlotte Russe’s “attempts to re-litigate
`issues previously decided in the summary judgment
`order[s] are ineffective.” The referenced summary judg-
`ment orders likewise do not address Styles For Less’s and
`Charlotte Russe’s obviousness arguments or make any
`findings regarding the asserted prior art references,
`whether it would have been obvious to combine those
`references, or make any findings as to any of the relevant
`secondary considerations of non-obviousness. The district
`court stated only that Styles For Less’s and Charlotte
`Russe’s challenges were the “same argument raised by
`the patent examiner during the prosecution of the parent
`application to the patent-in-suit” and that “[u]ltimately
`the patent examiner discarded such an argument and
`found the patent valid.” That finding, like the finding in
`Sciele, fails to satisfy Rule 52(a)’s requirements.
`Because the district court’s failure to make adequate
`findings prevents this court from engaging in meaningful
`review of the obviousness issues, the court grants the
`motions to vacate and remand. On remand, the district
`court should provide findings of fact and conclusions of
`law on the obviousness arguments as well as Styles For
`Less’s and Charlotte Russe’s other defenses sufficient to
`satisfy Rule 52(a).
`Accordingly,
`IT IS ORDERED THAT:
`
`
`
`

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`Case: 17-1328 Document: 21 Page: 6 Filed: 01/05/2017
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` BRAGEL INTERNATIONAL, INC. v. STYLES FOR LESS, INC.
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`The motions are granted. The district court’s grants
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`of preliminary injunctions are vacated, and the appeals
`are remanded for further proceedings.
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` FOR THE COURT
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` /s/ Peter R. Marksteiner
`Peter R. Marksteiner
`Clerk of Court
`
`
`
`s26
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`ISSUED AS A MANDATE: January 5, 2017
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`