In their motion for a preliminary injunction, plaintiffs sought to enjoin defendant from bringing to market defendant’s generic version of plaintiffs’ drug. Id. at 1. Plaintiffs’ motion was filed after the Court held its March 23, 2010 Markman hearing and after the parties informed the court that defendant planned an “at-risk launch” if its generic product received FDA approval. Id. at 4. Defendant agreed to not launch before May 31, 2010, and plaintiffs filed their motion for a preliminary injunction on April 2, 2010. In granting plaintiffs’ motion, Judge Stark found the following: (1) plaintiffs established likelihood of success on the merits based on, among other things, the label defendant proposed to the FDA for its generic product; (2) plaintiffs would be harmed irreparably due to lost market share, lost profits and price erosion; (3) harm to plaintiffs outweighed any harm defendant might suffer due to the injunction because, among other things, defendant would still be entitled to its 180-day period of exclusivity; and (4) the public interest would be served because “the public interest in recognizing Plaintiffs’ patent rights, and more generally promoting continued, large-scale investment in research and development of new pharmaceuticals, outweighs the public’s interest in promoting generic, low-cost alternatives to branded pharmaceuticals.” Id. at 7-38. Judge Stark also ordered plaintiffs to post a $26 million bond in the event that defendant was wrongfully enjoined. Id. at 39-40.
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