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11 June 2020PatentsSarah Morgan

Webinar: How to score a preliminary injunction

In disputes between fierce competitors, sometimes monetary damages aren’t enough and an injunction at the beginning of litigation may be far more valuable. But given the rarity of injunctions, how can you bolster your chances of securing one?

WIPR in association with Milbank, heard strategies for obtaining a preliminary injunction yesterday, June 10, in the webinar “Preliminary Injunctions: How to Get Them, How to Avoid Them”.

An infrequent instrument

Monica Arnold, associate at Milbank, outlined her research into how frequently motions for preliminary injunctions are filed and granted across the US in life sciences litigation.

Turning to the 19 districts with a biotech industry, Arnold found the top five districts for preliminary injunction motions in life sciences patent suits over the past ten years: New Jersey, Delaware, Massachusetts, Northern District of California, and the Southern District of New York.

“A patent-heavy docket is not indicative of the number of preliminary injunction motions made,” said Arnold, adding that in the Eastern District of Texas, while 59.5% of the docket relates to patent suits, only two motions for a preliminary injunction have been filed in ten years.

In New Jersey, while the patent docket only makes up 3% of cases, 25 preliminary injunctions have been made.

“The total number of [preliminary injunction motions in the] life sciences and technology doesn’t even top 50,” added Arnold, highlighting how rarely these motions have been made over a ten-year period.

Where you file suit can also play a role on whether or not your motion for a preliminary injunction is granted—in a pharmaceutical case, the motion is more likely to be granted in New Jersey or Delaware, as compared to, for example, the Southern District of New York.

In medical devices suits, Delaware has a “significant relationship” between the motion outcome and technology type, meaning there’s a greater chance of the motion being granted.

Arnold noted that the favourable motion outcomes in New Jersey and Delaware could be as a result of a heavy docket of brand v generic pharmaceutical cases.

Unique characteristics of this type of pharmaceutical litigation, such as direct competition, auto-substitution, and rapid loss of market exclusivity may be “ inherently supporting the patentee’s irreparable harm argument, shifting the focus to the likelihood of success factor”, explained Arnold.

However, added Gary Frischling, while it may be easier to obtain an injunction in a small molecule generic suit, this isn’t true for biologics.

“It’s easier to get an injunction in a small molecule generic case, because of the automatic substitution, because the market is pretty well understood and because the impact of a generic launch is well understood. That’s part of the explanation for the grant rates in New Jersey and Delaware,” he said.

But the markets for biologics are less well developed.

“Based on the data today, the economic hit the pioneer takes when a biosimilar launches isn’t anywhere near as bad as is the case in a small molecule generic [suit]. This leaves a little less clarity for biologics as to how easy or hard it will be to get injunctions,” said Frischling.

Balancing

David Gindler, partner at Milbank, examined the four factors the courts assess when deciding whether or not to grant a preliminary injunction: likelihood of success on the merits, likelihood of suffering irreparable harm, the balance of the equities, and whether an injunction is in the public interest.

“With very few exceptions, they address all four factors, so it is not the case that if you think you have a strong position on irreparable harm, to defeat a motion for a preliminary  injunction that you can simply rest on that and ignore the other factors,” he said.

Gindler went on to look at what arguments on the merits are most likely to succeed or fail. He added that one essential takeaway is that there are many more ways to fail than succeed on one of these motions.

Listen to the full webinar,“Preliminary Injunctions: How to Get Them, How to Avoid Them”,  here.

For more information on opportunities to participate in a webinar, contact Sarah Gooding on sgooding@newtonmedia.co.uk.

To listen to LSIPR's and WIPR's back catalogue, visit our  BrightTALK channel.

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