United States Court of Appeals

for the Federal Circuit

______________________ 

ABC CORPORATION I, ABC CORPORATION II,

Plaintiffs-Appellees

v.

THE PARTNERSHIP AND UNINCORPORATED 

ASSOCIATIONS IDENTIFIED ON SCHEDULE “A”, 

TOMOLOO OFFICIAL, TOMOLOO INE, TOMOLOO 

FRANCHISE, TOMOLOO-US, TOMOLOO 

FLAGSHIP, TOMOLOO TC, TOMOLOO DX,

TOMOLOO INT, URBANMAX, GYROOR, FENGCHIUS, GYROOR US,

Defendants

GAODESHANGUS,

Defendant-Appellant

______________________ 

2021-2150

______________________ 

Appeal from the United States District Court for the 

Northern District of Illinois in No. 1:20-cv-04806, 

Judge Thomas M. Durkin. 

------------------------------------------------- 

ABC CORPORATION I, ABC CORPORATION II,

Plaintiffs-Appellees

EBAY, INC.,

Plaintiff

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ABC CORPORATION I v. 

PARTNERSHIP AND UNINCORPORATED ASSOCIATIONS

2

v.

THE PARTNERSHIP AND UNINCORPORATED 

ASSOCIATIONS IDENTIFIED ON SCHEDULE “A”, 

TOMOLOO OFFICIAL, TOMOLOO INE, TOMOLOO 

FRANCHISE, TOMOLOO-US, TOMOLOO 

FLAGSHIP, TOMOLOO TC, TOMOLOO DX, 

TOMOLOO INT, GAODESHANGUS, GYROOR, 

CARTSTACK, DIDEN WU, HUSNALCOLLECTIONS, MHESTORE2009, 

WHOLESALESHOP666, CARRIE_YUX-5, 

2013TANKSTRONG001, MIJIASTORE, PAUTA60, 

SKATEBOARDSTORE2012, SMG-STORE,

STRONGJENNIE, CHO POWER SPORTS, SYLUS, 

XGN, SHAMOLUOTUO, 

XUEWEIWEIFUZHUANGDIAN, EVERCROSS, XIE 

SHI, JIANGYOU-US, RUNCHENYUN, TOMOLOO, 

SHOPCHEAPUNIVERSAL, TOMOLOO-NX, 

AOXTECH, BETTER TOMOLOO, LISON ET, 

GYROSHOES, HGSM STOREFRONT, HGSM,

Defendants

GYROOR US, URBANMAX, FENGCHI-US,

Defendants-Appellants

______________________ 

2021-2277, 2021-2355

______________________ 

Appeals from the United States District Court for the 

Northern District of Illinois in No. 1:20-cv-04806, Judge 

Thomas M. Durkin.

______________________ 

Decided: October 28, 2022 

______________________ 

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MARK BERKOWITZ, Tarter Krinsky & Drogin LLP, New 

York, NY, argued for plaintiffs-appellees. Also represented 

by RICHARD LOMUSCIO. Also represented by Adam G. Kelly, 

Douglas N. Masters, Neil G. Nandi, Arthur Tan-Chi Yuan, 

Loeb & Loeb LLP, Chicago, IL (withdrawn).

 HE CHENG, Glacier Law LLP, New York, NY, argued 

for defendants-appellants. Also represented by TIANYU JU,

TAO LIU. 

 ______________________ 

Before DYK, TARANTO, and STOLL, Circuit Judges. 

TARANTO, Circuit Judge. 

We address three appeals—filed by GaodeshangUS; by 

Fengchi-US and Urbanmax together; and by Gyroor-US—

from orders entered by the district court in a case brought 

in 2020 by ABC Corporation I and ABC Corporation II (collectively, ABC), in which ABC asserted four design patents 

against several business entities selling hoverboards 

online. ABC identified the defendants through a Schedule 

A, which changed over time, attached to the original and 

amended complaints. On November 24, 2020, the district 

court entered a preliminary injunction against the thennamed defendants, which included Gyroor-US, though it 

had not yet been served with process and was not given 

advance notice under Federal Rule of Civil Procedure 65(a) 

of the request for a preliminary injunction. Six months 

later, on May 24, 2021, the district court granted ABC’s 

motion to amend Schedule A to add GaodeshangUS, 

Fengchi-US, and Urbanmax, among others, thereby slating 

them to be defendants directly bound by the 2020 Preliminary Injunction, though these entities had not yet been 

served with process and did not receive Rule 65(a) notice. 

Because the required Rule 65(a) notice had not been given, 

we vacate the 2020 Preliminary Injunction as of its issuance, and, perhaps redundantly, we also vacate the May 24 

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Order insofar as it added defendants to the 2020 Preliminary Injunction.1

I 

On August 17, 2020, ABC brought the present designpatent infringement action in the Northern District of Illinois, and it filed an amended complaint the next day. ABC 

identified the defendants by their “merchant names” listed 

in an attached Schedule A, and it described them as “Defendant Internet Stores” that were selling goods on Internet websites, including amazon.com. ABC accused those 

defendants of infringing U.S. Design Patents D737,723; 

D738,256; D784,195; and D785,112, which claim particular 

designs of powered, two-wheeled, handle-less, stand-on vehicles known as “hoverboards.” 

Appellant Gyroor-US was one of the originally named 

defendants, but it was not served with the complaint until 

December 29, 2020, or with the required summons until 

January 29, 2021. Of relevance to the issues that we address in this opinion, on November 19, 2020, ABC filed its 

third amended complaint, under seal (as with key previous 

1 In October 2021, the district court entered another 

preliminary injunction naming, as defendants, three of the 

appellants before us in the present trio of appeals (all but 

Gyroor-US), plus four other entities: Gyroor, Gyroshoes, 

Fengshi-US, and HGSM. The 2021 Preliminary Injunction 

is the subject of Appeal No. 22-1071, filed by those entities 

and decided by us today in a separate opinion (which identifies the companies given the ABC names in the caption). 

ABC Corp. I v. P’ship & Unincorporated Ass’ns, -- F.4th --

(Fed. Cir. 2022). We initially consolidated Nos. 21-2277 

and 21-2355 with No. 22-1071 for briefing, but we have revoked that consolidation and newly consolidated Nos. 21-

2277 and 21-2355 with No. 21-2150 for purposes of this 

opinion.

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filings), with the updated Schedule A naming Gyroor-US 

and also Jiangyou-US—an appellant in Appeal No. 22-

1071 but not here—but not naming any other appellant 

here or in No. 22-1071. (Jiangyou-US, we note, was not 

served with process until June 25, 2021.) 

On November 20, 2020, the day after it filed its third 

amended complaint, ABC filed a motion for a preliminary 

injunction. Four days later, on November 24, 2020, the 

court entered the 2020 Preliminary Injunction, covering 

the “defendants” then identified in Schedule A, plus “their 

affiliates, officers, agents, servants, employees, attorneys, 

confederates, and all persons acting for, with, by, through, 

under or in active concert with them.” 21-2150 J.A. 9; cf. 

Federal Rule of Civil Procedure 65(d)(2) (“Persons Bound. 

The order binds only the following who receive actual notice of it by personal service or otherwise: (A) the parties; 

(B) the parties’ officers, agents, servants, employees, and 

attorneys; and (C) other persons who are in active concert 

or participation with anyone described in [(A) or (B)].”). It 

is undisputed before us that Gyroor-US was not given notice that a motion for a preliminary injunction had been 

filed or was under consideration before the 2020 Preliminary Injunction was entered, and it was not served with 

process within thirty days of the entry of the preliminary 

injunction. Indeed, lack of pre-entry notice to most thennamed defendants is reflected in the fact that the 2020 Preliminary Injunction itself unsealed the series of complaints 

and amended complaints and various motions and exhibits 

filed in the case until then, along with a previously entered 

temporary restraining order. J.A. 14.2 

2 On December 23, 2020, the district court entered a 

modification of the November 24, 2020 preliminary injunction. As noted above, service on Gyroor-US was not completed until January 29, 2021, more than thirty days after 

December 23, 2020. The parties have not suggested, and 

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On May 6, 2021, ABC filed a motion reflecting its concern about infringing activity by entities that were not 

named in Schedule A, and hence were not directly subject 

to the 2020 Preliminary Injunction, but that it had reason 

to think were affiliates of or in active concert with those 

already named in Schedule A. Specifically, ABC moved to 

amend Schedule A to add various entities to it, including 

GaodeshangUS, Fengchi-US, and Urbanmax, to become 

defendants.3 On May 24, 2021, the district court granted 

ABC’s motion to amend Schedule A (May 24 Order). The

newly added defendants were not served with process until 

June 25, 2021, more than thirty days after the entry of the 

May 24 Order. Of relevance here, the record before us does 

not reflect that GaodeshangUS (a non-party) was served 

with notice of the filing or pendency of a motion to extend 

the 2020 Preliminary Injunction to it by amending Schedule A.

Immediately after the May 24 Order was entered, on 

the same day, two attorneys who were already representing Gyroor-US entered appearances for GaodeshangUS—

in the two docket entries following the entry for the May 24 

Order. The same day, in the next docket entry, 

GaodeshangUS filed a notice of appeal, which launched Appeal No. 21-2150. 

On June 18, 2021, Fengchi-US and Urbanmax moved 

to clarify or to vacate the 2020 Preliminary Injunction. The 

district court, on August 9, 2021, ordered the 2020 Preliminary Injunction to remain in place, thus denying the motion. In so ruling, the court mentioned the challenge to the 

we do not see, that the modification changes the analysis 

of any issue before us. We therefore disregard that modification.

3 The May 24 Order also added other entities to 

Schedule A, including Gyroor, Gyroshoes, Fengshi-US, and 

HGSM, who are appellants in No. 22-1071.

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2020 Preliminary Injunction for lack of required notice but 

did not rule on it, instead directing ABC to seek a new preliminary injunction in light of the notice challenge. 

Fengchi-US and Urbanmax filed a notice of appeal on September 2, 2021, which launched Appeal No. 21-2355.

The same day the district court issued its order on the 

motion filed by Fenchi-US and Urbanmax, August 9, 2021, 

Gyroor-US moved to dissolve the 2020 Preliminary Injunction. Gyroor-US raised, among other arguments, a challenge to the adequacy of notice before that injunction was 

issued (having at least once before raised the issue too late 

in briefing on another motion). The district court denied 

the motion on August 24, 2021, having already directed 

ABC to seek a new preliminary injunction in response to 

the notice-inadequacy contention of Fengshi-US and Urbanmax. Gyroor-US filed a notice of appeal on August 28, 

2021, which launched Appeal No. 21-2277. 

Though not directly at issue at this time, we note two 

developments in the record before us that post-date the 

foregoing orders and appeals. On October 6, 2021, the district court held GaodeshangUS, Fengchi-US, Urbanmax, 

and Gyroor-US (along with the additional appellants in No. 

22-1071) in contempt of the 2020 Preliminary Injunction. 

The court stated that GaodeshangUS, Fengchi-US, and Urbanmax “do not dispute that they are affiliated with the 

store fronts addressed by [ABC’s contempt] motion” and 

that “they have failed to show that the[ir] products are different from those covered by the [2020 Preliminary Injunction].” 21-2150 J.A. 5883. Relatedly, the same day, the

district court, again noting that the “facts relating to notice 

are contested,” granted ABC’s motion for a new preliminary injunction (filed at the district court’s direction), and 

the court entered the 2021 Preliminary Injunction one 

week later, on October 13, 2021.

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II

We must address our jurisdiction to hear the three appeals decided in this opinion and, if we have jurisdiction,

appellants’ assertions that notice defects invalidate the 

challenged orders. The appeals concern orders that subject

appellants to the 2020 Preliminary Injunction as defendants (as “parties,” Rule 65(d)(2)(A)). The orders do not apply the injunction to appellants as persons found, in or 

before such orders, to be “in active concert or participation” 

with parties. Rule 65(d)(2)(C). No such finding was made, 

so we do not have before us a situation where a non-party 

is being subjected to an injunction based simply on adequate notice of the injunction proceeding and injunction. 

Regarding the situation before us, we note that ABC

has not argued that the 2020 Preliminary Injunction bound 

appellants as defendants before they were properly served 

to become defendants in the case. We proceed on the premise that they were not so bound. We do not decide for ourselves, but we note that the premise is at least consistent 

with the recognition that “service of summons is the procedure by which a court having venue and jurisdiction of the 

subject matter of the suit asserts jurisdiction over the person of the party served.” Mississippi Publishing Corp. v. 

Murphree, 326 U.S. 438, 444–45 (1946); see Omni Capital 

International, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104 

(1987) (“Before a federal court may exercise personal jurisdiction over a defendant, the procedural requirement of 

service of summons must be satisfied.”); BNSF Railway Co. 

v. Tyrrell, 137 S. Ct. 1549, 1556 (2017) (“[A]bsent consent, 

a basis for service of a summons on the defendant is prerequisite to the exercise of personal jurisdiction.” (citing 

Omni, 484 U.S. at 104)); Advanced Tactical Ordnance Systems, LLC v. Real Action Paintball, Inc., 751 F.3d 796, 800 

(7th Cir. 2013) (“In order for the district court's preliminary 

injunction to be valid, that court had to have personal jurisdiction over the defendant.”); Sikhs for Justice v. Badal, 

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736 F.3d 743 (7th Cir. 2013) (upholding dismissal for lack 

of personal jurisdiction based on lack of proper service). 

A 

Appellants assert that we have jurisdiction under 28 

U.S.C. § 1292(c)(1), which, as relevant here, says that “the 

Federal Circuit shall have exclusive jurisdiction . . . of an 

appeal from an interlocutory order or decree described in 

subsection (a) . . . in any case over which the court would 

have jurisdiction of an appeal under section 1295 of this 

title.” The present district court case arises under the patent laws and therefore is within our appellate jurisdiction 

under 28 U.S.C. § 1295(a)(1). Subsection (a) of § 1292 covers “interlocutory orders of the district courts . . . granting, 

continuing, modifying, refusing or dissolving injunctions, 

or refusing to dissolve or modify injunctions.” 28 U.S.C. 

§ 1292(a)(1).

“This court applies its ‘own law and not the law of the 

regional circuit to issues concerning our jurisdiction.’” 

Aevoe Corp. v. AE Tech Co., 727 F.3d 1375, 1381 (Fed. Cir. 

2013) (quoting Ultra-Precision Manufacturing Ltd. v. Ford 

Motor Co., 338 F.3d 1353, 1356 (Fed. Cir. 2003)); see Atlas 

IP, LLC v. Medtronic, Inc., 809 F.3d 599, 604–05 (Fed. Cir. 

2015). Regarding the adequacy of a notice of appeal under 

Federal Rule of Appellate Procedure 3, because “Rule 3’s 

dictates are jurisdictional,” Smith v. Barry, 502 U.S. 244, 

248 (1992), whether a notice complies with Rule 3 is governed by Federal Circuit law, Minnesota Mining & Manufacturing Co. v. Chemque, Inc., 303 F.3d 1294, 1308–09 

(Fed. Cir. 2002). Regarding the character of the district 

court’s exercise of its own general remedial authority in 

this case, where no patent-specific issue is present, we apply applicable regional-circuit law, namely, Seventh Circuit law. See Aevoe, 727 F.3d at 1381 (explaining that a 

“modification of a preliminary injunction . . . is not unique 

to patent law, so this court applies the law of the regional 

circuit when reviewing and interpreting such a decision”).

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We address the three appeals being decided here in the 

sequence in which the orders appealed from were issued.

1 

GaodeshangUS filed its notice of appeal on May 24, 

2021, giving rise to Appeal No. 21-2150. The notice states 

that the appeal is “from the preliminary injunction entered 

in this action on November 24, 2021.” GaodeshangUS and 

ABC agree that “2021” is a typographical error meaning 

“2020.” See GaodeshangUS’s 21-2150 Opening Br. at I; 

ABC’s 21-2150 Response Br. at 1. But they dispute 

whether GaodeshangUS’s notice of appeal was filed within 

the thirty days of “entry” of the relevant order allowed by 

28 U.S.C. § 2107(a)—which it does if construed to cover the 

May 24 Order (entered the same day as the notice of appeal 

was filed). The parties also dispute whether the May 24 

Order is an appealable modification of the 2020 Preliminary Injunction. GaodeshangUS’s 21-2150 Opening Br. at 

8–15; ABC’s 21-2150 Response Br. at 14–19. We resolve 

both disputes in favor of GaodeshangUS. 

a 

A notice of appeal must, among other things, “designate the judgment—or the appealable order—from which 

the appeal is taken.” Fed. R. App. P. 3(c)(1)(B). We “liberally construe the requirements of Rule 3” and the notices 

of appeal filed pursuant to it. Smith, 502 U.S. at 248; accord Minnesota Mining, 303 F.3d at 1309. “A mistake in 

designating the judgment appealed from is not always fatal, so long as the intent to appeal from a specific ruling can 

fairly be inferred by probing the notice and the other party 

was not misled or prejudiced.” Sanabria v. United States, 

437 U.S. 54, 67 n.21 (1978). 

GaodeshangUS’s notice of appeal, we conclude, should 

be read to refer to the May 24 Order amending Schedule A. 

It is only under the combination of that order and the 2020 

Preliminary Injunction that GaodeshangUS could be a 

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defendant under the 2020 Preliminary Injunction that the 

notice expressly identifies. GaodeshangUS filed the notice 

the same day as the May 24 Order. These facts readily indicate that the notice’s designation of the 2020 Preliminary 

Injunction alone, without the May 24 Order that added 

GaodeshangUS to it, was “[a] mistake in designating the 

judgment,” which “is not always fatal.” Id. Seeing no prejudice to ABC, we think this is a case in which the mistake 

should not be fatal. Because GaodeshangUS’s May 24, 

2021 notice of appeal, fairly read, refers to the May 24 Order, the notice was timely filed within the thirty days allowed by § 2107(a). 

b 

We also conclude that the May 24 Order is appealable 

as an order “modifying” the 2020 Preliminary Injunction, 

within the meaning of 28 U.S.C. § 1292(a)(1), to which 

§ 1292(c)(1) refers. The Seventh Circuit, addressing 

§ 1292(a)(1), has ruled that it “has jurisdiction over modifications of injunctions” while it does “not, however, have jurisdiction over orders interpreting injunctions.” American 

River Transportation Co. v. Ryan, 579 F.3d 820, 824 (7th 

Cir. 2009). “To modify an injunction is to change it.” 

ACORN v. Illinois State Board of Elections, 75 F.3d 304, 

306 (7th Cir. 1996). If an order “alters the legal relationship between the parties,” then it is a modification, not 

clarification, of the injunction. American River, 579 F.3d 

at 824.

The May 24 Order was a modification of the 2020 Preliminary Injunction. Before the May 24 Order, as relevant 

here, ABC could enforce the injunction against 

GaodeshangUS only if ABC proved that GaodeshangUS 

had notice of the injunction and, upon GaodeshangUS’s receipt of “notice and an opportunity to be heard,” also proved 

that GaodeshangUS was in active concert or participation 

with a defendant directly subject to the injunction (or officers, agents, servants, employees, or attorneys of a 

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defendant). Lake Shore Asset Management Ltd. v. Commodity Futures Trading Commission, 511 F.3d 762, 767 

(7th Cir. 2007) (applying Rule 65(d)(2)). The May 24 Order 

changed this arrangement to make ABC’s enforcement easier. The May 24 Order meant that, once GaodeshangUS 

was properly served, ABC could enforce the injunction’s restrictions against GaodeshangUS as a defendant, without 

showing that GaodeshangUS, in its allegedly violative conduct, was in active concert or participation with another 

defendant (or such other defendant’s officers, agents, servants, employees, or attorneys). 

That was a change in the legal relationship between 

GaodeshangUS and ABC. ABC has not shown that this 

difference in its obligations was devoid of substance in this 

case. For example, it has not identified to us any proceeding before (or on) May 24, 2020, or before service of process 

was complete, in which, after GaodeshangUS had received 

notice and an opportunity for a hearing, the district court 

had found GaodeshangUS in active concert or participation 

with an existing defendant—at all, let alone in a categorical way that would automatically cover all post-May 24 

acts of GaodeshangUS that would be barred to a defendant. 

In these circumstances, we hold that the May 24 Order altered the legal relationship between GaodeshangUS and 

ABC, making it an appealable modification of the 2020 Preliminary Injunction, giving us jurisdiction in Appeal No. 

21-2150.

2

On September 2, 2021, Fengchi-US and Urbanmax appealed from the district court’s August 9, 2021 order continuing the 2020 Preliminary Injunction, launching Appeal 

No. 21-2355. The notice was timely filed within the thirty 

days of “entry” of the August 9 order allowed by 28 U.S.C. 

§ 2107(a). And the subject of the appeal was an order “continuing” as well as “refusing to dissolve or modify” the 2020 

Preliminary Injunction, as discussed above. 28 U.S.C. 

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§ 1292(c)(1). Under the plain terms of the statute, that order is appealable. No argument against jurisdiction in this 

appeal has been made, and we see no impediment to our 

jurisdiction. 

In particular, we do not question that a district court 

may apply general forfeiture principles to continue a preliminary injunction if, in the circumstances, the argument 

for dissolution or modification is properly deemed lost because it was raised too late. See, e.g., Antisdel v. Chicago 

Hotel Cabinet Co., 89 F. 308, 311 (7th Cir. 1898) (stating 

that “laches or unexcused delay of a defendant in moving 

for the dissolution of a preliminary injunction may constitute ground for denying the motion when made”). A different but related limit has been recognized for certain 

appeals from a continuation. Specifically, the 30-day jurisdictional time limit on appeal, running from “entry” of an 

injunction, 28 U.S.C. § 2107(a); Federal Rule of Appellate 

Procedure 4(a)(1), has been recognized sometimes to limit

appellate review of a denial of a motion for dissolution or 

modification to exclude review of a ground for dissolution

or modification that the appellant had fully available when 

the injunction was initially entered and was, because it 

was a properly served party at that time, obligated to raise 

by appeal within 30 days from the injunction’s entry. See, 

e.g., Teledyne Technologies Inc. v. Shekar, 831 F.3d 936, 

939 (7th Cir. 2016) (discussing such a situation, whether as 

a matter of jurisdiction or as a matter of the scope of proper 

review). Such a limit is in accord with the recognition that 

“Rule 60(b) is not a substitute for a timely appeal.” McCulloch v. Secretary of Health & Human Services, 923 F.3d 

998, 1001 (Fed. Cir. 2019) (citing United Student Aid 

Funds, Inc. v. Espinosa, 559 U.S. 260, 270 (2010)).

Such limits do not apply here. In the August 9, 2021

order, the district court did not rule that the notice argument was made too late. Moreover, Fengchi-US and Urbanmax, like GaodeshangUS, had not been served with 

process at the time of the 2020 Preliminary Injunction or 

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until more than 30 days later. Nor had they been served 

within 30 days of entry of the May 24 Order that added 

them to Schedule A. We have identified no precedent 

deeming such a person to be obligated to take an appeal 

before proper service, even if the person could take such an 

appeal, as GaodeshangUS did from the May 24 Order, 

based on the nonspeculative prospect that the plaintiff 

would soon enough complete service of process. 

In these circumstances, we see no jurisdictional obstacle to our considering the notice challenge to the 2020 Preliminary Injunction on appeal from an order within the 

plain terms of § 1292(c)(1). We have jurisdiction to consider the challenge in No. 21-2355.

3 

On August 28, 2021, Gyroor-US appealed from the district court’s August 24, 2021 denial of its motion to dissolve 

the 2020 Preliminary Injunction, launching Appeal No. 21-

2277. The notice was timely filed within the thirty days of 

August 24 allowed by 28 U.S.C. § 2107(a). And the subject 

of the appeal was an order “continuing” as well as “refusing 

to dissolve or modify” the 2020 Preliminary Injunction, as 

discussed above. 28 U.S.C. § 1292(c)(1). Under the plain 

terms of the statute, that order is appealable. No argument 

against jurisdiction in this appeal has been made, and we 

see no impediment to our jurisdiction.

In particular, we reach the same jurisdictional conclusion regarding Gyroor-US as the one we have just reached 

for Fengchi-US and Urbanmax. We recognize that GyroorUS had been named in ABC’s complaints preceding the issuance of the November 24, 2020 Preliminary Injunction, 

but on the premise under which we proceed as noted at the 

outset of our analysis, Gyroor-US—besides not having been 

given notice of the preliminary injunction request—was 

not brought within the power of the court, by proper service 

of process, until more than 30 days after the preliminary 

injunction was issued. We have been shown no precedent 

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holding that a person in that position is bypassing a required appeal opportunity. And the district court did not 

so hold in its August 24, 2021 order. We conclude that we 

have jurisdiction to consider the challenge in No. 21-2277.

B 

“[W]e review a grant or denial of a preliminary injunction using the law of the regional circuit.” Murata Machinery USA v. Daifuku Co., 830 F.3d 1357, 1363 (Fed. Cir. 

2016). We review a grant of a preliminary injunction for 

abuse of discretion. Camelot Banquet Rooms, Inc. v. U.S. 

Small Business Administration, 14 F.4th 624, 628 (7th Cir. 

2021); see Procter & Gamble Co. v. Kraft Foods Global, Inc., 

549 F.3d 842, 845 (Fed. Cir. 2008). “[A] district court 

abuse[s] its discretion by . . . disregarding the strict procedural requirements of [Rule 65] . . . .” American Can Co. v. 

Mansukhani, 742 F.2d 314, 321 (7th Cir. 1984). We apply 

regional-circuit law to interpretations of notice and other 

requirements of Rule 65 for a preliminary injunction, 

where not tied to patent-specific issues. See Mikohn Gaming Corp. v. Acres Gaming, Inc., 165 F.3d 891, 894 (Fed. 

Cir. 1998); Digital Equipment Corp. v. Emulex Corp., 805 

F.2d 380, 382 n.3 (Fed. Cir. 1986). Here, the parties rely 

on Seventh Circuit law, but we would reach the same conclusion were the matter deemed to implicate patent-specific issues.

Appellants challenge the May 24 Order and the 2020 

Preliminary Injunction on the ground that the notice requirement of Federal Rule of Civil Procedure 65(a) was not 

met. Rule 65(a) permits a court to enter a preliminary injunction “only on notice to the adverse party.” Fed. R. Civ. 

P. 65(a)(1). “The notice required by Rule 65(a) before a preliminary injunction can issue implies a hearing in which 

the defendant is given a fair opportunity to oppose the application and to prepare for such opposition.” Granny 

Goose Foods, Inc. v. Brotherhood of Teamsters & Auto 

Truck Drivers No. 70 of Alameda County, 415 U.S. 423, 432 

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n.7 (1974); see also Illinois ex rel. Hartigan v. Peters, 871 

F.2d 1336, 1340 (7th Cir. 1989) (“[N]otice should apprise a 

defendant of a hearing and provide adequate time to prepare a defense.” (citing SEC v. Capital Growth Co., 391 F. 

Supp. 593, 600 (S.D.N.Y. 1974))). In the context of nonparties being brought under the restrictions of an injunction 

based on a determination that they are in active concert 

with parties, the Seventh Circuit has explained that the 

determination “may be made only after the person in question is given notice and an opportunity to be heard.” Lake 

Shore, 511 F.3d at 766–67.

We readily conclude that the May 24 Order and the 

2020 Preliminary Injunction violated the Rule 65(a) notice 

requirement. Before the entry of the 2020 Preliminary Injunction, no advance notice or opportunity to oppose was 

given even to then-named defendant Gyroor-US, let alone 

to the other appellants before us. Nor was advance notice 

or opportunity to oppose given to GaodeshangUS of the motion granted in the May 24 Order; and the same is true of 

the other two appellants (Fengchi-US and Urbanmax) 

added to the defendant list by that order.

Regarding the 2020 Preliminary Injunction, ABC suggests that advance notice was provided to Gyroor-US when 

Amazon “froze Gyroor-US’s account” on October 20, 2020. 

ABC’s 21-2277 Response Br. at 22. But we have no basis 

for concluding that Amazon’s freezing of Gyroor-US’s account apprised Gyroor-US of the pendency of a motion for 

(or consideration of) a preliminary injunction so as to give 

Gyroor-US the required opportunity to oppose. See Granny 

Goose Foods, 415 U.S. at 432 n.7; Hartigan, 871 F.2d at 

1340.

Regarding the May 24 Order, ABC argues that 

GaodeshangUS received notice through counsel who were 

representing both GaodeshangUS and Gyroor-US. ABC’s 

21-2150 Response Br. at 24–25. The attorney at issue, Mr.

Cheng, having entered an appearance for Gyroor-US on 

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April 30, 2021, did receive electronic notice of ABC’s May 6 

motion to amend Schedule A, well before the May 24 Order, 

and that notice may well have constituted notice to any 

party represented by Mr. Cheng at that time. See Howard 

v. Local 74, Wood, Wire & Metal Lathers International, 208 

F.2d 930, 934 (7th Cir. 1953) (“Under Rule 5, notice to counsel is notice to all parties represented by him.”). But in 

addition to the facts that GaodeshangUS was not a party 

at the time, and Mr. Cheng did not enter an appearance for 

GaodeshangUS until May 24, just after the May 24 Order 

was entered, the record simply does not establish that Mr. 

Cheng represented GaodeshangUS before May 24. In 

these circumstances, notice to Mr. Cheng of ABC’s May 6 

motion was not the required notice to GaodeshangUS.

Accordingly, we hold that the 2020 Preliminary Injunction and the May 24 Order were entered in violation of Rule 

65(a). 

C 

Having concluded that Rule 65(a) was violated, we conclude that the proper remedy in this case is vacatur of the 

2020 Preliminary Injunction from its issuance and, though 

it might be an unnecessary addition, vacatur of the May 24 

Order insofar as it newly subjected those added to Schedule 

A to the 2020 Preliminary Injunction. We have said: “A 

preliminary injunction issued without notice, motion, hearing or evidence should be vacated.” Atari Games Corp. v. 

Nintendo of America, Inc., 897 F.2d 1572, 1578 n.7 (Fed. 

Cir. 1990). And ABC has made no argument that any different remedy should be adopted if we find a Rule 65(a) notice problem. Moreover, in No. 22-1071, we today require 

vacatur of the 2021 Preliminary Injunction because of substantive defects, and it is evident that the 2020 Preliminary Injunction, which is very similar, suffers from 

materially the same defects. Our limited vacatur of the 

May 24 Order does not preclude treating that order as an 

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amendment of the complaint, as the parties have done in 

the companion case we decide today. 

III 

We find it unnecessary to address other issues raised 

in the three appeals resolved in this opinion. For the foregoing reasons, we vacate for lack of Rule 65(a) notice the 

preliminary injunction entered by the district court on November 24, 2020, and the order entered by the district court 

on May 24, 2021, that granted ABC’s motion to amend 

Schedule A insofar as that order extended the 2020 Preliminary Injunction to new defendants. 

Costs awarded to appellants.

VACATED

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