Eli Lilly and Co. v. Actavis Elizabeth LLC

NOTE: This order is nonprecedential

United States Court of AppeaIs for the FederaI Circuit

ELI LILLY AND COMPANY,

Plaintiff-Appellant,

V.

ACTAVIS ELIZABETH LLC,

Defendant-Appellee, and

SUN PHARMACEUTICAL INDUSTRIES LIMITEI), Defem:iant-Appellee, and

SANDOZ INC.,

Defendant-Appellee, and

MYLAN PHARMACEUTICALS INC.,

Defen,dant-Appellee, and

APOTEX INC.,

Defendan,t-Appellee, and l

ELI LILLY AND COMPANY V. ACTAVIS ` 2

AUROBINDO PHARMA LTD.,

Defendant-Appellee, and

TEVA PHARMACEUTICALS USA, INC.,

Defend¢mt-Appellee.

2010-1500

Appeal from the United States District Court for the District of New Jersey in case no. 07-CV-3'770, Judge Dennis M. Cavanaugh.

ON MOTION

PER CURIAM.

0 R D E R

Eli Lilly and Cornpany move for an injunction to pre- vent the defendants-appellees from launching generic versions of its patented drug, pending disposition of its appeal The defendants-appellees oppose. Aurobindo Phar1na Ltd. and Mylan Pharmaceuticals Inc. move for clarification of this court's order expediting the briefing schedule. Sun Pharmaceutical Industries, Ltd. requests judicial notice of various patents and patent applications that it asserts are publicly available.

The United States District Court for the District of NeW Jersey held that the defendants induced infringe- ment of Eli Lilly's patent and that the patent was invalid for lack of enablement. Eli Lilly seeks an injunction, pending appeal, to prevent the introduction of generic ELI LILLY AND COMPANY V. ACTAVIS versions of its patented drug, pending disposition of this appeal

To obtain a stay or injunction, pending appeal, a movant must establish a strong likelihood of success on the merits, or, failing that, nonetheless demonstrate a substantial case on the merits provided that the harm factors militate in its favor. Hilton u. Braunskill, 481 U.S. 770, 778 (1987). In deciding whether to grant a stay, pending appeal, this court "assesses the movant’s chances of success on the merits and weighs the equities as they affect the parties and the public." E.I. du Pont de Ne- mours & C0. u. Phillips Petroleu,m Co., 835 F.2d 277, 278 (Fed. Cir. 1987); see also Standard Havens Prods. u. Gencor In,dus., 897 F.2d 511 (Fed. Cir. 1990).

Based on the motions papers submitted and without prejudicing the ultimate disposition of this appeal by a merits panel, we determine that Eli Lilly has met its burden to obtain an injunction pending appeal, Concerning the motion to clarify the order expediting the briefing schedule, the movants assert that due to recently filed cross-appeals the briefing schedule must be revised. Additionally, some of the defendants have in- formed this court that they have filed cross-appeals, seeking review of the district court's infringement deter- mination and review of the district court's rejection of other grounds of invalidity. Because the defendants can make arguments concerning these issues as appellees, their cross-appeals are improper Thus, we instruct the clerk of this court to dismiss those improperly filed cross- appeals when they are docketed.

Accordingly,

IT ls ORDERE1) THAT: (1) The motion for an injunction pending appeal is granted.

ELI LILLY AND COMPANY V. ACTAVlS (2) The request for judicial notice is granted (3) The motion for clarification is denied. (4) When the cross-appeals are docketed, they will be dismissed for lack of jurisdiction. 'AUG 3 'l 2010

Date cc: Robert D. Bajefsky, Esq.

Gregory D. Miller, Esq.

Scott B. Feder, Esq.

Christine J. Siwik, Esq.

Thomas J. Parker, Esq.

Keith V. Rockey, Esq.

James F. Hurst, Esq.

Steven J. Lee, Esq. s8

For The Court /s/ J an Horbaly

Jan Horbaly

Clerk men

U.S. COURT

THE FEDE0l:A?.p(;§f}l|sITFoR

AUG 3 1 2010 .lANHORBALY

C|.ERK