The Grant Of A Preliminary Injunction Is Reviewed For Clear Error

Judges: Newman (author), Archer (concurring), Gajarsa (dissenting)

[Appealed from N.D. Ill., Judge Coar]

In Abbott Laboratories v. Sandoz, Inc., No. 07-1300 (Fed. Cir. Oct. 21, 2008), the Federal Circuit affirmed the district court's grant of a preliminary injunction barring Sandoz, Inc. ("Sandoz") from selling a generic form of extended release clarithromycin pending final resolution of the case.

The suit relates to extended release formulations of clarithromycin. Sandoz filed an ANDA, which the FDA approved in 2005. Abbott Laboratories ("Abbott"), who markets the drug under the brand name Biaxin®XL, filed suit, charging Sandoz with infringing U.S. Patent No. 6,010,718 ("the '718 patent") and U.S. Patent No. 6,551,616 ("the '616 patent"). The '718 patent claims an extended release formulation comprising an erythromycin derivative and a pharmaceutically acceptable polymer. The '616 patent is a CIP of the '718 patent, which claims a method of