Par Pharmaceutical, Inc. et al v. TWi Pharmaceuticals, Inc., 1-11-cv-02466 (MDD August 12, 2014, Order) (Blake, J.)
Wednesday, August 20, 2014
Irreparable Harm to Losing Plaintiff Justifies Injunction Against Defendant Pending Appeal
Following a bench trial in which the court found the asserted patent invalid, the court granted plaintiff's motion to enjoin defendant from marketing or selling its accused drug product pending plaintiff's appeal, on the condition that plaintiff post a $10 million bond and move to expedite its appeal. "[Plaintiff] claims that it will succeed on the merits because this court erred in its application of the law with respect to motivations to combine the prior art and inherency. Although the court stands by its judgment, it recognizes that the case presents a close call. . . . The court is not persuaded [plaintiff] has demonstrated a 'strong' likelihood of success on appeal. . . . [Plaintiff] has, however, made a showing of a substantial case. Because . . . the balance of hardships tips strongly in its favor as well, this showing is sufficient. . . . [Plaintiff] has presented evidence that it would suffer more than just lost revenue. [Plaintiff] has also demonstrated that the lost revenue will likely force its entire branded division . . . to shut down. . . . In addition, there is evidence that were [defendant] to enter the market only to be required to exit again, the price erosion and revenue losses [plaintiff's product] would suffer would be impossible to reverse completely."