The opinion of the court was delivered by: Pisano, District Judge
Presently before the Court in this patent infringement action is a motion by plaintiffs, Sanofi-Aventis U.S. LLC, Sanofi-Aventis, Debiopharm, S.A. (collectively "Sanofi" or "Plaintiffs"), under Federal Rule of Appellate Procedure ("FRAP") 8(a)(1)(A) for a stay pending appeal of the Court's judgment with respect to its June 18, 2009 decision granting summary judgment of non-infringement to certain defendants. Defendant Mayne Pharma Limited, Mayne Pharma (USA) Inc., Hospira Australia Pty Ltd., Hospira Inc. (collectively, "Mayne"), and Teva Parenteral Medicines, Inc., Teva Pharmaceuticals USA, Inc., Pharmachemi B.V., Barr Laboratories, Inc., and Pliva-Lachema A.S. ("Teva," together with Mayne, "Defendants") have opposed the motion. The Court heard oral argument on June 30, 2009. For the reasons below, Plaintiffs' motion is denied.
On June 18, 2009, the Court entered an Opinion and Order which granted summary judgment of non-infringement of U.S. Patent No. 5,338,874 (the " '874 patent") in favor of a number of defendants in this case. See Docket Entry Nos. 378, 379. Immediately thereafter, defendants Teva and Mayne submitted proposed judgments and requested their entry pursuant to Federal Rule of Civil Procedure ("FRCP") 54(b). In addition to other parties who provided the Court with their positions on the issue, Plaintiffs opposed the request and filed a motion to delay entry of judgment, which the Court denied from the bench on June 25, 2009. At the conclusion of the June 25th proceeding, after the Court announced its ruling and its intention to enter judgment, Plaintiff orally made the instant motion to stay the judgment. The Court set an expedited briefing schedule and held a hearing on the motion by telephone on June 30, 2009, at which the Court denied the motion and advised the parties that this Opinion would follow. The Court also entered judgment of non-infringement of the '874 patent in favor of defendants.
Although Plaintiffs bring their motion under FRAP 8, Mayne argues that the appropriate rule for the relief sought by Plaintiff is FRCP 62(c). This rule applies to proceedings in the district court in which a party seeks relief from an order or judgment that, like here, rejected a suit seeking permanent injunctive relief. Rule 62(c) provides that when "an appeal is pending from an interlocutory order or final judgment that... denies an injunction," a district court, in its discretion, " may suspend, modify, restore, or grant an injunction on terms for bond or other terms that secure the opposing party's rights."
The Court agrees with Mayne that the appropriate rule to apply in this case is Rule 62(c), as Rule 8 appears to apply to proceedings in the Court of Appeals. See Hilton v. Braunskill, 481 U.S. 770, 776, 107 S.Ct. 2113, 2119 (1987) ("Different Rules of Procedure govern the power of district courts and courts of appeals to stay an order pending appeal.") (citing FRCP 62(c) and FRAP 8(a)). The Court's analysis, therefore, will proceed under Rule 62. However, it is not especially material to the analysis which rule applies, because the Supreme Court has noted that the applicable standards under Rule 62(c) and Rule 8(a) are essentially the same. Id. ("Under both Rules... the factors regulating the issuance of a stay are generally the same.").
As courts have noted, a party moving for an injunction under Rule 62(c) may be "placed in the in the position of requesting the very relief, pending appeal, that [the] Court has just decided it is not entitled to receive." FTC v. Equitable Resources, Inc., 2007 WL 1500046 (W.D. Pa. May 21, 2007). As such, "[a]lthough Rule 62(c) recognizes that such apparently anomalous relief may sometimes be appropriate, the party seeking such relief is, not surprisingly, deemed to bear a very heavy burden of persuasion." See id.; see also Wright, et al., 11 Fed. Prac. & Proc. Civ.2d § 2904 (burden of meeting the Rule 62(c) standard for injunctions pending appeal is a "heavy one").
The four factors the Court must evaluate in determining whether to grant a motion for an injunction pending appeal are as follows: "(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies." Hilton, 481 U.S. at 776. The Court addresses these in turn:
A. Liklihood of Success on the Merits
Plaintiffs argue that this factor requires the Court to evaluate the Plaintiffs' likelihood of success on the pending appeal. Defendants, on the other hand, argue that the standard is even higher, namely that Plaintiffs are not entitled to an injunction "if the defendant merely 'raises "a substantial question" concerning validity, enforceability, or infringement (i.e., asserts a defense that [the movant] cannot show "lacks substantial merit").'" Mayne Brf. at 6 (alteration in original) (quoting Altanta Pharma AG v. Teva Pharm. USA, Inc., 566 F.3d 999, 1005-06 (Fed. Cir. 2009). However, the Court need not resolve the issue, because it finds that Plaintiffs have not met their burden on the lesser of the two standards.
In support of its position on this first factor, Plaintiffs repeats several arguments with respect to the infringement issue that they raised when the Court addressed the underlying summary judgment motions. The Court considered these arguments and rejected them in reaching the decision that Plaintiffs are presently appealing. In reaching that decision, the Court thoroughly considered all of the arguments made in the extensive briefing and at the lengthy hearing, and carefully reviewed the voluminous record. Based on that record, applicable Federal Circuit precedent dictated a finding of non-infringement. See Andersen Corp. v. Fiber Composites, LLC, 474 F.3d 1361, 1375 (Fed. Cir. 2007); Chimie v. PPG Industries, Inc., 402 F.3d 1371 (Fed. Cir. 2005). The Court, therefore, finds that this first factor weighs against entering a stay.
Plaintiffs argue that they will suffer severe and irreparable harm absent a stay pending appeal. Plaintiff Debiopharm states that royalties from its U.S. sales of Eloxatin are expected to account for a large percentage of the company's revenues in 2009, and that a generic launch would cause ...