NOTE: This order is nonprecedential
United States Court of AppeaIs
for the FederaI Circuit
ELI LILLY AND COMPANY,
Plaintiff-Appellant,
V.
ACTAVIS ELIZABETH LLC,
Defendant-Appellee,
and
SUN PHARMACEUTICAL INDUSTRIES LIMITEI),
Defem:iant-Appellee,
and
SANDOZ INC.,
Defendant-Appellee,
and
MYLAN PHARMACEUTICALS INC.,
Defen,dant-Appellee,
and
APOTEX INC.,
Defendan,t-Appellee,
and
l
ELI LILLY AND COMPANY V. ACTAVIS ` 2
AUROBINDO PHARMA LTD.,
Defendant-Appellee,
and
TEVA PHARMACEUTICALS USA, INC.,
Defend¢mt-Appellee.
2010-1500
Appeal from the United States District Court for the
District of New Jersey in case no. 07-CV-3'770, Judge
Dennis M. Cavanaugh.
ON MOTION
PER CURIAM.
0 R D E R
Eli Lilly and Cornpany move for an injunction to pre-
vent the defendants-appellees from launching generic
versions of its patented drug, pending disposition of its
appeal The defendants-appellees oppose. Aurobindo
Phar1na Ltd. and Mylan Pharmaceuticals Inc. move for
clarification of this court's order expediting the briefing
schedule. Sun Pharmaceutical Industries, Ltd. requests
judicial notice of various patents and patent applications
that it asserts are publicly available.
The United States District Court for the District
of NeW Jersey held that the defendants induced infringe-
ment of Eli Lilly's patent and that the patent was invalid
for lack of enablement. Eli Lilly seeks an injunction,
pending appeal, to prevent the introduction of generic
3 ELI LILLY AND COMPANY V. ACTAVIS
versions of its patented drug, pending disposition of this
appeal
To obtain a stay or injunction, pending appeal, a
movant must establish a strong likelihood of success on
the merits, or, failing that, nonetheless demonstrate a
substantial case on the merits provided that the harm
factors militate in its favor. Hilton u. Braunskill, 481 U.S.
770, 778 (1987). In deciding whether to grant a stay,
pending appeal, this court "assesses the movant’s chances
of success on the merits and weighs the equities as they
affect the parties and the public." E.I. du Pont de Ne-
mours & C0. u. Phillips Petroleu,m Co., 835 F.2d 277, 278
(Fed. Cir. 1987); see also Standard Havens Prods. u.
Gencor In,dus., 897 F.2d 511 (Fed. Cir. 1990).
Based on the motions papers submitted and without
prejudicing the ultimate disposition of this appeal by a
merits panel, we determine that Eli Lilly has met its
burden to obtain an injunction pending appeal,
Concerning the motion to clarify the order expediting
the briefing schedule, the movants assert that due to
recently filed cross-appeals the briefing schedule must be
revised. Additionally, some of the defendants have in-
formed this court that they have filed cross-appeals,
seeking review of the district court's infringement deter-
mination and review of the district court's rejection of
other grounds of invalidity. Because the defendants can
make arguments concerning these issues as appellees,
their cross-appeals are improper Thus, we instruct the
clerk of this court to dismiss those improperly filed cross-
appeals when they are docketed.
Accordingly,
IT ls ORDERE1) THAT:
(1) The motion for an injunction pending appeal is
granted.
ELI LILLY AND COMPANY V. ACTAVlS
4
(2) The request for judicial notice is granted
(3) The motion for clarification is denied.
(4) When the cross-appeals are docketed, they will be
dismissed for lack of jurisdiction.
'AUG 3 'l 2010
Date
cc: Robert D. Bajefsky, Esq.
Gregory D. Miller, Esq.
Scott B. Feder, Esq.
Christine J. Siwik, Esq.
Thomas J. Parker, Esq.
Keith V. Rockey, Esq.
James F. Hurst, Esq.
Steven J. Lee, Esq.
s8
For The Court
/s/ J an Horbaly
Jan Horbaly
Clerk
men
U.S. COURT
THE FEDE0l:A?.p(;§f}l|sITFoR
AUG 3 1 2010
.lANHORBALY
C|.ERK