Appendix 30

• Author: Kenneth Dorsney
• Pages: 735-735

735

MOT I O N FO R PR E L I M I N A R Y INJUNCTION AN D TE M P O R A R Y RE S T R A IN I N G

ORD E R

IN THE UNITED STATES DISTRICT COURT

[Name of District]

[DISTRICT COURT CAPTION]

PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION

AND TEMPORARY RESTRAINING ORDER

Pursuant to 35 U.S.C. §§ 271(e)(4)(B) and 283, and Fed. R. Civ. P. 65, Plaintiff

Brand, Inc. (“Brand”) moves for a preliminary injunction preventing Defendant Generic,

Inc. (“Generic”) from marketing or selling the generic product identified in Generic’s

Abbreviated New Drug Application No. 00-0001 pending a trial on the merits. Plaintiff

also requests that the Court issue a temporary restraining order preventing Generic’s

marketing or selling of that product pending the Court’s resolution of Plaintiff’s

preliminary injunction motion.

The Court has scheduled a hearing on Plaintiff’s motion for a preliminary

injunction for [Date]. Defendant Generic has agreed not to launch its generic version of

Plaintiff’s BrandX drug until [Date], but has not agreed to await the Court’s decision on

Plaintiff’s motion for a preliminary injunction prior to launching its generic product.

Thus, in the event that the Court is not able to issue a decision on Plaintiff’s motion until

after [Date], Plaintiff respectfully requests that the Court issue a temporary restraining

order to maintain the status quo pending the Court’s decision on the preliminary

injunction motion. Such power is well within the Court’s authority. See, e.g., Zimmer v.

Copperneff Advisors, Inc., 523 F.3d 224, 227 (3d Cir. 2008) (noting that the district court

issued a temporary restraining order enjoining the defendant’s activities until the court

held a hearing and entered an order with respect to the plaintiffs’ motion for a

preliminary injunction).

In deciding whether to grant a motion for a temporary restraining order, a court

must balance the same factors relevant to a preliminary injunction: (1) the patentee’s

likelihood of success on the merits; (2) the irreparable harm the patentee will suffer if the

injunction is not granted; (3) the balance of the hardships between the parties; and (4) the

public interest. See Sanofi-Synthelabo v. Apotex, Inc., 470 F.3d 1368, 1374 (Fed. Cir.

2006) (citation omitted); Tootsie Roll Indus., Inc. v. Sathers, Inc., 666 F. Supp. 655, 658

(D. Del. 1987). Here, as set forth in Plaintiff’s Opening Brief submitted herewith, all four

factors weigh strongly in favor of the Court restraining Generic’s activity.

DATED: [Date of Signature]

[Name of Counsel for Plaintiff]

[Name of Attorney for Plaintiff]

[Address of Counsel for Plaintiff]

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