Abbott Labs. v. Sandoz, Inc., No. 05 C 5373, 2006 WL 3718025 (N.D. Ill. Dec. 15, 2006) (Coar, J.).

Judge Coar denied plaintiff’s, Abbott Laboratories ("Abbott"), motion for a temporary restraining order ("TRO") to prevent defendant, Sandoz, Inc. ("Sandoz"), from selling a generic version of Abbott’s patented extended release antibiotic (clarithromycin, an erythromycin derivative which Abbott markets as Biaxin XL).  The Court had entered a TRO and, ultimately, a preliminary injunction preventing another party, Teva Pharmaceuticals ("Teva"), from selling a generic version of plaintiff’s patented extended release antibiotic, but the Federal Circuit vacated the preliminary injunction.  The Federal Circuit held that Teva raised a substantial question as to the validity of the claims at issue, sufficient to call Abbott’s likelihood of success on the merits into question. 

In the instant case, Sandoz argued that the Federal Circuit’s prior ruling that there was a question regarding the validity of the claims-at-issue precluded any preliminary injunctive relief.  The Court held that rulings on preliminary relief have no preclusive effect because they are made on an incomplete record, "inherently tentative" and based upon only "an estimate of the likelihood of success."  Despite that ruling, however, the Court noted that "the practical effect of [the Federal Circuit’s] holding still militates towards the denial of the TRO in the instant case."  The Court refused to reach a holding inconsistent with the Federal Circuit’s without a "substantial showing" on a more complete record.  So, although the Court denied the TRO, it appears to have kept an open mind about a preliminary injunction based upon a more complete record.

*For another take on this case, check out the Orange Book Blog.