Merial Ltd. v. Cipla Ltd. ( 2011 )

NOTE: This order is n0nprecede11tial.
United States Court of Appeals
for the FederaI Circuit
MERIAL LIMITED AND MERIAL SAS,
Plaintiffs-Appellees,
AND
BASF AGRO B.V.,
Plc.',intiff,
V.
CIPLA LIMITED, __
Defendant-Appellant,
AND
VELCERA, INC. AND FIDOPI-IARM, INC.,
Defendants-Appellants,
AND
ARCHIPELAGO SUPPLIERS, ARROWTARGET
ENTERPRISES LTD., GENERIC PETMEDS,
INHOUSE DRUGSTORE, LISA PERKO, PETCARE
PHARM.ACY, AND PETMEDS R US,
Defendants.
2011-1471, -1472
Appeals from the United States District C0urt for the
Midd1e DiSt1'ict of Ge0rgia in case n0. 07-CV-0125, Judge
C1ay D. Land.
BASF AGRO V. CIPLA LIMITED 2
ON MOTION
Before LOURIE, MO0RE, and REYNA, Circuit Judges.
LOURIE, Circuit Judge.
0 R D E R
The appellants move to stay the contempt order and
injunction entered by the United States District Court for
the Middle District of Georgia, pending this court's dispo-
sition of their appeal of the order. Merial Limited and
Merial SAS (Merial) oppose. The appellants reply.
The district court held that the appellants were in
contempt of a previous injunction that prohibited, inter
alia, the selling or importation of products that infringed
two of Merial's patents. As part of its judgment, the
district court ordered that the appellants must provide to
Merial for destruction any inventory in the United States
that contains fipronil and methoprene. The district court
further enjoined the appellants from, inter alia, selling or
importing veterinary products that contain fipronil and
methoprene. The district court stayed its order and
injunction until August 2O, 2011.
To obtain a stay, pending appeal, a movant must es-
tablish a strong likelihood of success on the merits, or,
failing that, nonetheless demonstrate a substantial case
on the merits provided that the harm factors militate in
its favor. Hilton u. Brau,nskill, 481 U.S. 770, 778 (1987).
In deciding whether to grant a stay, pending appeal, this
court "assesses the movant’s chances of success on the
merits and weighs the equities as they affect the parties
and the public." E.I. du Pont de Nemours & Co. u. Phil-
lips Petroleum Co., 835 F.2d 277, 278 (Fed. Cir. 1987).
3 BASF AGRO V. CIPLA LIMlTED
See also Standard Havens Prods. v. Gencor Indus., 897
F.2d 511 (Fed. Cir. 1990).
Based on the motions papers submitted, and without
prejudicing the ultimate disposition of this appeal by a
merits panel, we determine that the appellants have not
met their burden to obtain a stay of the injunction or
contempt order, except that Merial should not destroy the
inventory provided to it by the appellants during the
pendency of this appeal.
Accordingly,
IT ls OR:oERED THAT:
The motion is granted to the limited extent that,
pending this court's disposition of this appeal, Merial
should not destroy any inventory required to be delivered
by the appellants. The motion is in all other aspects
denied. _
FoR THE CoURT '
1 7 lsi Jan Horbaly
Date J an Horbaly
Clerk
cc: Nagendra Setty, Esq.
Jonathan G. Graves Esq. FlLED
. ’ U.S. COURT 0 FOR
Gregory A. Castan1as, Esq. THE FEDEli':A'l``.P(i:li:?l3iilS1T
33 AUG 1 7 2011
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