By Donald Zuhn --
The U.S. Court of Appeals for the Federal Circuit issued an Order today in Eli Lilly & Co. v. Actavis Elizabeth LLC, granting Lilly's request for an injunction to prevent Defendants-Appellees from launching generic versions of Lilly's ADHD drug Strattera® until Lilly's appeal has been resolved. On August 25, Lilly filed a notice of appeal seeking review of a decision by the District Court for the District of New Jersey invalidating Lilly's U.S. Patent No. 5,658,590 for lack of enablement, and then immediately moved for an injunction pending disposition of its appeal. Defendants-Appellees opposed Lilly's request for an injunction in a response that was due Monday. In granting Lilly's motion, the Court stated that Lilly had met its burden to obtain an injunction pending appeal.
In addition, two of the Appellees (Aurobindo Phrama and Mylan Pharmaceuticals) moved for clarification of the Court's August 26 Order continuing a 14-day injunction granted by the District Court one week earlier. The Federal Circuit's August 26 Order also set an expedited briefing schedule in which Lilly's opening brief is due by Thursday, September 9; Defendants-Appelllees' briefs are due by Thursday, September 23; and Lilly's reply brief and the joint appendix are due by Thursday, September 30. It is the expedited briefing schedule for which Aurobindo and Mylan sought clarification. In particular, Aurobindo and Mylan asserted that in view of cross-appeals that had been filed, the briefing schedule required revision. The Court, however, dismissed the cross-appeals for lack of jurisdiction and denied the motion for clarification.
For additional information regarding this topic, please see:
• "Federal Circuit Continues Temporary Injunction in Lilly v. Actavis Elizabeth," August 30, 2010
• "Biotech/Pharma Docket," August 26, 2010
• "Biotech/Pharma Docket," August 19, 2010
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