Par Pharmaceutical, Inc. et al v. TWi Pharmaceuticals, Inc., 1-11-cv-02466 (MDD July 30, 2015, Order) (Blake, J.)
Monday, August 3, 2015
Authorizing Sales of Generic Drug Undermines Plaintiff’s Request for Injunction Pending Appeal
The court denied plaintiffs' motion for an injunction pending their appeal of the court's post-remand order which again found plaintiffs' drug patent invalid. "[Plaintiffs'] likelihood of success remains about the same as before. On one hand, the court has concluded that the [patent] is invalid on an additional, independent basis. On the other — while the court stands by its most recent judgment — it also recognizes that the case involves close calls, and that the Federal Circuit reviews de novo this court’s legal conclusions on obviousness and enablement. . . . But [plaintiff] is now less likely to be irreparably harmed absent an injunction. By opting to begin selling an authorized generic version of [its drug product], [plaintiff] — and not [defendant] — created the very risk of price erosion it fears. . . . Forcing [defendant] to wait even longer than the 11 months it has already waited since receiving FDA approval would increase the likelihood [defendant] would derive no revenue — and not merely delayed revenue — from its generic product. . . . Meanwhile, [plaintiff], by virtue of having launched its own generic, will have had the time to establish itself in the market for generic [product]."