In another update to the preliminary injunction issued August 29 in the Apotex case, The Fire of Genius writes that there are two interesting things to note about Judge Stein’s decision: (1) it nowhere mentions the eBay v. MercExchange case, at all (!); and (2) Judge Stein applies the traditional pre-eBay “presumption of irreparable harm” standard.

In eBay, the CAFC had stated that courts must grant preliminary injunctions (alleged) infringers under very weak conditions in ruling that the standards for preliminary injunctions for patents should be as stringent as those in other forms of legal actions. The Supreme Court ruled unanimously that there is no “general rule” to permanently enjoin patent infringement. Instead the Court held that “the decision whether to grant or deny injunctive relief rests within the equitable discretion of the district courts, and that such discretion must be exercised consistent with traditional principles of equity.”

Here, Judge Stein states that:

Having found that Sanofi has clearly established a likelihood of success on the merits, the Court also finds that Sanofi receives the benefit of a presumption of irreparable harm. Not only does Sanofi receive the benefit of that presumption, but it has also offered independent evidence of irreparable harm, namely, evidence that this Court credits that it will suffer irreversible price erosion, loss of good will, and will be forced to lay off personnel and discontinue research devoted to developing other medical uses for Plavix.

Apotex has not produced evidence sufficient to rebut the presumption of irreparable harm to Sanofi, or to adequately explain away the other forms of irreparable harm for which Sanofi has adduced credible evidence.

Because Sanofi has demonstrated a likelihood of success on the merits, and thereby secured the statutory presumption of irreparable harm, and has, moreover, proffered further persuasive evidence of irreparable harm, the Court concludes for the purposes of this motion that Sanofi will indeed suffer such harm in the absence of a preliminary injunction.

The order does seem to strengthen Sanofi’s infringement case given that Judge Stein sums up stating that “Sanofi has adequately demonstrated that the questions Apotex raises as to the validity and enforceability of Sanofi’s ‘265 patent are without substantial merit based on the evidence adduced to date, Sanofi has demonstrated a likelihood of success on the merits at trial.”

Apotex tried to get the court to stay the injuction but was turned down. See the motion here.

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