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We've been writing quite a few stories about the Federal Circuit Court of Appeals upholding or staying preliminary injunctions, typically against drug companies who are trying to sell generic versions of popular drugs. But how does one typically go through the process of challenging a preliminary injunction in the Federal Circuit? Luckily, Patently-O provides some insight into the process:
Is there a right to stay injunctive relief?
Under the Federal Rules of Civil Procedure, there is no right to stay an order of injunctive relief while the case goes through appeal. Thus, the losing party must file an emergency motion for a stay pending appeal.
Who decides the motion?
Most pre-hearing motions are decided by a designated motions judge, which is filled on a monthly-rotation by the Federal Circuit judges. An emergency motion for a stay of injunctive relief, however, is typically more complex and necessitates a substantive review of the merits of the appeal. These motions are decided by a merits panel.
How does the panel decide the motion?
The Federal Circuit applies a four-factor test to determine whether to grant the stay: 1) a likelihood of success on the merits; 2) irreparable harm; 3) balance of hardships; and 4) public interest. The Federal Circuit has held that either of the first two factors can be dispositive, according to Patently-O.
In the recent battle between Celsis In Vitro and Life Technologies Corporation over Celsis' Liverpool patent, the Federal Circuit upheld a preliminary injunction because Celsis had successfully defeated Life Technologies' obviousness challenge and adequately proved a likelihood of success on the merits of the appeal.