A Blog About Intellectual Property Litigation and the District of Delaware


Entries for tag: TRO

You are all of course familiar with the classic tale of chicken little. You may be less familiar with the plot of if the ill-fated Disney move of the same name. They both start the same, chicken sleeping under a tree has something fall on him, tells everyone the sky is falling and starts a panic.

Sahad Babali, Unsplash

Here the stories diverge. In the folktale, chicken little and his panicked friends meet a while fox, who tricks them into taking shelter in his cave, and then eats them. You can see the lesson.

In the film, chicken little is scorned, but later redeems himself by helping the local baseball team win the pennant (?). Afterwards, he is again hit by a piece of the sky, which turns out to be high tech camouflage used to hide alien spaceships in low orbit. The ships descend upon the hapless town, and the whole thing turns out to be a big misunderstanding. The lesson is somewhat less clear. This film made 300 million dollars.

Those of you who read Law360 (who somehow scooped me on this, but whose article does not recount the plot of a 20-year-old children's movie in unnecessary detail) will have guessed that this is all leading up to Judge Andrews' Oral Order yesterday in Novartis Pharmaceuticals Corporation v. Dr. Reddy's Laboratories, Inc., C.A. No. 19-2053-RGA. D.I. 512 (D. Del. Apr. 2, 2025):

Yesterday, MSN said the sky was falling and it needed emergency relief. I granted it. Today, MSN has filed an emergency motion requesting additional relief for essentially the same falling sky. I decline to enter any additional relief at this time or to consider the motion on an emergency basis.

For those wondering about the context here, the Federal Circuit just recently issued its mandate in the case ruling that the asserted patent was valid and infringed. Judge Andrews then promptly entered a final judgment, which included an order setting the effective date for approval of MSN's ANDA until after the end of Novartis' pediatric exclusivity period.

It's unclear from the docket exactly what happened next, but it appears that MSN emailed chambers ...

The patentee's <a href='#' class='abbreviation' data-bs-toggle='tooltip' data-placement='top' title='Temporary Restraining Order'>TRO</a> attempt worked out about as well as this (unmanned) rocket's attempt to reach orbit.
The patentee's TRO attempt worked out about as well as this (unmanned) rocket's attempt to reach orbit. Tim Mossholder, Unsplash

Ouch. In Nivagen Pharmaceuticals, Inc. v. Amneal Pharmaceuticals Inc., C.A. No. 24-846-GBW (D. Del.), the patentee plaintiff filed suit to stop a competitor from launching a drug that it says would infringe its patents, after the competitor received FDA approval.

(Because this was not an ANDA, there was no automatic stay.)

The plaintiff filed a TRO motion on August 13, shortly after its complaint. For at least two of the …

Broken
CHUTTERSNAP, Unsplash

We wrote last week about an accused infringer's attempt to secure a TRO to force the patentee to undo their efforts to get the infringer's product de-listed from Amazon.

Judge Stark swiftly ruled on the TRO, ultimately denying it for failure to show a likelihood of success on the merits:

ORAL ORDER: Having considered all the briefing and other relevant materials . . . and having heard short oral argument yesterday, IT IS HEREBY ORDERED that [accused infringer] EIS's motion for a temporary restraining order and preliminary injunction (D.I. 139) is DENIED. EIS has not shown a likelihood of success on the merits. EIS's noninfringement argument (D.I. 140 at 7−9) turns on construction of the …

Warehouse
Adrian Sulyok, Unsplash

Here's one I haven't seen before. In EIS, Inc. v. Intihealth GER GmbH, C.A. No. 19-1227-LPS (D. Del.), the counterclaim-defendant filed a motion for a TRO to force the patentee defendant to withdraw infringement notices it provided to Amazon.com regarding the counterclaim-defendant's products, and to force them to request that Amazon restore the product's ranking and reviews on the site:

Plaintiff EIS Inc. (“EIS”) respectfully moves the Court to grant a temporary restraining order to enjoin Defendants, requiring them to withdraw their patent infringement notice(s) to Amazon that reference EIS’s “Satisfyer” products, and ordering that the withdrawal shall request that Amazon restore EIS’s product listings with the same rankings and customer reviews …

A sweetgum ball obliterated by a hatchet, a fate similar to that of plaintiffs' <a href='#' class='abbreviation' data-bs-toggle='tooltip' data-placement='top' title='Temporary Restraining Order'>TRO</a>
A sweetgum ball obliterated by a hatchet, a fate similar to that of plaintiffs' TRO Andrew E. Russell, CC BY 2.0

The practice in Delaware has long been that calls to chambers are generally only appropriate in a relatively narrow range of circumstances, and "please decide my motion immediately" is not one of them.

It looks like one plaintiff's counsel may have learned this this hard way on Wednesday when they filed a TRO seeking to enforce an arbitration clause in an employment agreement, and then immediately called the court to urge that it receive immediate attention. Here is the Court's response, issued the same day as …