Abbott Laboratories v. Andrx Pharmaceuticals, Inc. 2007 WL 29957 (Fed. Cir. 2007).

In a case in which the Plaintiff-Appellee sought a preliminary injunction against a generic maker of its patented Biaxin XL product, an extended release clarithromycin formulation, the Federal Circuit held that preliminary findings of invalidity or unenforceability in other proceedings involving the same patents do not preclude such a motion based on collateral estoppel. The Court reasoned that the previous proceedings were not final under the U.S. Supreme Court’s decision in Blonder-Tongue Laboratories Inc. v. University of Illinois Foundation. In that case, the Supreme Court held that collateral estoppel would be permitted on a motion for a preliminary injunction when an accused infringer establishes that a court entered a final judgment of invalidity; that the issues were identical; and, that the party against whom estoppel is asserted had a full and fair opportunity to litigate the matter. In Abbott v. Andrx, however, the Court noted that the earlier proceedings at issue had dealt with proving a likelihood of success on an invalidity claim and, accordingly, that no final judgment had entered for the purposes of issue preclusion.