In determining a defendant's burden to establish invalidity at the preliminary injunction stage, the court was "constrained" to follow the standard set in Erico Int’l Corp. v. Vutec Corp., 516 F.3d 1350 (Fed. Cir. Feb. 19, 2008) and not Abbott Laboratories v. Sandoz, Inc., 544 F.3d 1341 (Fed. Cir. Oct. 21, 2008). "Respectfully, the Court continues to agree with Judge Newman on this issue and finds her opinion in Sandoz, Inc. particularly persuasive. . . . Nonetheless, the Court finds that it is constrained to apply the standard set forth in Erico and, accordingly, finds that [defendant's] burden is to show no more than the existence of a 'substantial question' regarding the validity of the [patents at issue]. If [defendant] succeeds in 'casting doubt' regarding the validity of the patents the Court must deny [plaintiff's] motion for preliminary injunction."
Avery Dennison Corp. v. Alien Technology Corp., 1-08-cv-00795 (OHND March 18, 2009, Memorandum & Order)
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