Janssen Inc. v. Abbvie Corporation, 2014 FCA 176

Drug: ustekinumab (STELARA®)

Janssen and Abbvie were involved in a patent infringement action. Abbvie was successful in its claim for infringement, and the patent was held to be valid (decision here; summary here). Janssen then moved to stay the remedial phase of the action; which was refused (decision here; summary here). Abbvie then obtained an injunction against Janssen (decision here; summary here). The decision on the merits is still under appeal. By this motion, Janssen sought to stay the injunction, and consolidate a number of related appeals.

The Court of Appeal (FCA) held that since most of the paper has already been filed, the appropriate remedy is to have the appeals heard together. The Court also set the appeals down for hearing in October.

With respect to the request to stay the injunction, the FCA refused to grant the stay, holding that Janssen has failed to establish unavoidable irreparable harm. The FCA held that administrative inconveniences such as training personnel and changing communications cannot support suspending the injunction without more. Furthermore, the FCA was not persuaded by Janssen’s concern regarding its reputation with doctors who prescribe STELARA®. Finally, the FCA held that if there are ambiguities in the terms of the injunction, the Federal Court is an adequate forum for that relief. The FCA also held that a party moving to suspend an injunction must show it creates unusual or abnormal burdens, uncertainties and risks, and here that evidence is missing.