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]."

Par Pharmaceutical, Inc. et al v. TWi Pharmaceuticals, Inc., 1-11-cv-02466 (MDD July 30, 2015, Order) (Blake, J.)