Posted On: May 11, 2007 by Karen E. Keller

Delay intimates status quo is not causing irreparable harm

A note to practitioners: be mindful of any time elapsing before filing a motion for preliminary injunction as it could be a reason for denying the relief. On May 9, 2007, Magistrate Judge Thynge issued an opinion in the case of Digene Corporation v. Ventana Medical Systems, Inc. and Beckman Coulter, Inc. denying plaintiff's request for preliminary injunctive relief for lack of showing irreparable harm or likelihood of success on the merits. C.A. No. 01-752 (D. Del. May 9, 2007) (Thynge, J.). Digene sought to enjoin defendant Ventana from making, using, selling or offering to sell reagents that contain HPV35, a human papillomavirus. This motion was filed 58 months from the date the initial complaint was filed and 30 months after, if one were to subtract the stay that was in place while Digene and Beckman Coulter engaged in arbitration proceedings before the International Centre for Dispute Resolution. The Court noted that "delay in seeking a preliminary injunction is a significant factor bearing on the need for it." Id. at 15. There was no "plausible explanation" in the record as to why Digene waited such a long period of time to file its motion. Id. In fact, Digene had filed a motion in 2003 seeking a more limited injunction to prevent Ventana from entering into a deal with third parties yet did not address any of the irreparable harm in that motion that it now claims to be suffering from. Id. Delay, the Court stated, "for a significant period of time before seeking a preliminary injunction intimates that the status quo is not causing irreparable harm." Id. at 16.

The Court further found that Digene's argument that Ventana was causing a possible loss of customer relations or effect on its market share was only "speculation" since the actual evidence showed continued "substantial growth" by Digene in the relevant market.

The Court earlier in the opinion found that Digene had also not established a likelihood of success on the merits.

The question remains: how long is too long - but the better practice…better safe than sorry. So file those motions as early as possible to avoid a finding of delay.