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Mylan Institutional LLC v. Aurobindo Pharma Ltd.

Mylan Institutional LLC v. Aurobindo Pharma Ltd.

United States Court of Appeals for the Federal Circuit

May 19, 2017, Decided

2017-1645

Opinion

 [***1623]  [*861]   Lourie, Circuit Judge.

Aurobindo Pharma Ltd., Aurobindo Pharma USA Inc., and Auromedics Pharma LLC (together, "Aurobindo") appeal from a decision of the United States District Court for the Eastern District of Texas granting Mylan Institutional LLC's ("Mylan Inst.") and Apicore US LLC's ("Apicore") (together, "Mylan") motion for a preliminary injunction precluding Aurobindo from making, using, selling, offering to sell, and importing the accused isosulfan blue ("ISB") [**2]  product that allegedly infringes three of Apicore's patents—U.S. Patent 7,622,992 ("the '992 patent"), U.S. Patent 8,969,616 ("the '616 patent"), and U.S. Patent 9,353,050 ("the '050 patent"). See Mylan Institutional LLC v. Aurobindo Pharma Ltd., No. 2:16-cv-00491, 2017 U.S. Dist. LEXIS 16797, 2017 WL 497593 (E.D. Tex. Feb. 7, 2017) ("Order Adopting R&R"). Because the district court did not err in its grant of the preliminary injunction under the '050 patent, although it did err in granting the injunction under the '992 and '616 patents, we affirm.

Background

Apicore owns, and Mylan Inst. is the exclusive licensee of, the '992, '616, and '050 patents, which relate to ISB, a triarylmethane dye used to map lymph nodes. The '992 and '616 patents (together, "the process patents") are directed to a process for preparing ISB by reacting isoleuco acid with silver oxide in a polar solvent, followed by reaction with a sodium solution. See, e.g., '992 patent col. 7 11. 21-44.1 The '992 patent further requires 2.0-3.0 equivalents of silver oxide. See id. col. 9 1. 65. Claim 1 of the '616 patent is representative of the process patents and reads as follows:

A process of preparing N-[4-[[4-(diethyl-amino)phenyl] (2, 5-disulfophenyl)methylene] -2,5-cyclohexadien-1 -ylidene] -N-ethylethanaminium,  [***1624]  sodium salt comprising combining a suspension of isoleuco acid of the formula

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857 F.3d 858 *; 2017 U.S. App. LEXIS 8792 **; 122 U.S.P.Q.2D (BNA) 1621 ***; 2017 WL 2192945

MYLAN INSTITUTIONAL LLC, APICORE US LLC, Plaintiffs-Appellees v. AUROBINDO PHARMA LTD., AUROBINDO PHARMA USA INC., AUROMEDICS PHARMA LLC, Defendants-Appellants

Prior History:  [**1] Appeal from the United States District Court for the Eastern District of Texas in No. 2:16-cv-00491-RWS-RSP, Judge Robert Schroeder, III.

Mylan Institutional LLC v. Aurobindo Pharma Ltd., 2017 U.S. Dist. LEXIS 16797 (E.D. Tex., Feb. 7, 2017)

CORE TERMS

patents, district court, compound, infringement, silver oxide, oxidation, purity, manganese, dioxide, preliminary injunction, acid, substantial question, chemical, prior art, quotation, argues, marks, doctrine of equivalents, purified, blue, substantial difference, record evidence, manufacture, supplier, mixture, cases, indefinite, isoleuco, copying, merits

Civil Procedure, Remedies, Injunctions, Preliminary & Temporary Injunctions, Patent Law, Jurisdiction & Review, Standards of Review, Abuse of Discretion, Clearly Erroneous Review, Equitable Relief, Injunctions, De Novo Review, Grounds for Injunctions, Grounds for Injunctions, Likelihood of Success, Infringement Actions, Doctrine of Equivalents, Standards of Review