MNTA: NO CHANGE IN TRO
MEMORANDUM & ORDER
GORTON, J.
On October 12, 2011, the defendants submitted an Emergency
Motion to Modify or Dissolve the Temporary Restraining Order that
was entered by the Court on October 7, 2011 (Docket No. 39). The
temporary restraining order (“TRO”) prohibits the defendants from
advertising, offering for sale or selling a generic enoxaparin
product that allegedly infringes one or more of the patents
issued to Momenta Pharmaceuticals, Inc. until after the Court
conducts a preliminary injunction hearing on October 20, 2011.
In their emergency motion, defendants contend that they will
suffer two distinct harms if the TRO remains in effect and is not
modified until after the preliminary injunction hearing. First,
defendants purportedly will be unable to sell at fair value one
lot of their enoxaparin product that is due to expire on December
31, 2011. They contend that the product must have a minimum
shelf life of eight weeks to be sold at market price and that an
additional two weeks is generally needed for processing and
shipping. Second, defendants will be unable to bid on two longterm
supply contracts with Group Purchasing Organizations
(“GPOs”) because the deadlines for those bids (which have already
expired or are about to expire) may not be able to be extended
after the TRO period.
After consideration of the parties’ pleadings, the
accompanying exhibits and affidavits and the oral arguments of
counsel at the hearing on this date, the Court has determined
that modification or rescission of the TRO is unwarranted.
With respect to defendants’ inventory with a shelf-life
problem, the defendants have not demonstrated that maintaining
the status quo for six days will prevent them from locating
interested buyers and executing sales or cause them any material
harm. The balance of the harms remains in plaintiffs’ favor for
the time being.
With respect to the bidding issue, the defendants have not
demonstrated that the temporary restriction of their ability to
record bids on the two GPO contracts will cause them an
irrevocable loss of business. The precise terms of the potential
contracts, including whether they are “sole source” contracts
with or without “termination rights” or “rights of first
refusal”, is unclear, and defendants’ indeterminate harm does not
warrant modification of the TRO. The Court has temporarily
restrained the defendants to prevent potential harm to the
plaintiffs in the form of price erosion. Nothing in defendants’
offer of proof has persuaded the Court to alter its decision in
the short term.
ORDER
In accordance with the foregoing, Defendant’s Emergency
Motion to Modify or Dissolve Temporary Restraining Order (Docket
No. 43) is DENIED.
So ordered.
/s/ Nathaniel M. Gorton
Nathaniel M. Gorton
United States District Judge
Dated October 14, 2011
AI
