BASF AGRO B.V. et al v. CIPLA Limited et al

Filing 89

ORDER denying 79 Motion; denying 82 Motion; finding as moot 88 Motion. Ordered by Judge Clay D. Land on 06/30/2011 (ajp)

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA ATHENS DIVISION MERIAL LIMITED and MERIAL SAS, * * Plaintiffs, * vs. CASE NO. 3:07-CV-125 (CDL) * CIPLA LIMITED, * Defendant, * VELCERA, INC., INC. and FIDOPHARM, * Intervenors. * O R D E R Intervenors and Defendant move to extend the stay of this Court’s Order, entered on June 21, 2011, pending appeal to the Federal Circuit (ECF Nos. 79 & 82). Rather than providing any new old argument or even polishing an one, movants simply present what appears to be the first draft of their brief to the Court of Appeals. Although this Court generally acknowledges its own human fallibility, it is not prone to sudden epiphanies. The clarity of the evidence upon which this Court’s findings of fact were remains based strong. has not While diminished; the Court its convincing certainly nature respects the prerogative of the Federal Circuit to ultimately disagree, this Court, having heard, seen and studied the evidence, finds little likelihood that movants will prevail on appeal. Moreover, balancing the equities of the parties and considering the public interest, the protection Court for finds the an indeterminate prevailing parties stay is with no unwarranted. Accordingly, movants motions for extension of the 60-day stay are denied (ECF Nos. 79 & 82). The hastens movants prevent Court from to add seeking that a approval of a supersedeas bond. today’s does not conditioned stay Order upon the However, for such a bond to be approved, the Court would expect movants to present evidence in support of estimate would of be any such royalty application payments appropriate to demonstrating and/or other compensate a reasonable compensation Plaintiffs for that the infringement of their patent during the pendency of the appeal. If such application is sought, the Court would permit Plaintiffs to depose any affiant who submits an affidavit or declaration in support of any such application for a supersedeas bond and to obtain any documents relevant to the affiant’s testimony. allow the Court ample opportunity to rule on any To such application before the present stay ends, movants should file their motion for approval of a supersedeas bond, including any affidavits and supporting documents, by July 15, 2011, and make any affiant available for deposition no later than July 29, 2011. Plaintiffs would then have until August 12, 2011 to file 2 their response. Plaintiffs’ In present light of motion this for ruling, leave the Court to conduct to make finds expedited discovery (ECF No. 88) premature and moot. The Court finds it appropriate some final observations regarding its sua sponte imposition of the present 60-day stay. Although the Court did follow through on the 60-day stay that it foreshadowed at the conclusion of the oral arguments, it did so with some reservation. During the final preparation of its findings of fact and conclusions of law, the Court determined that the law and evidence strongly demanded a judgment in favor of Plaintiffs. Notwithstanding the Court’s strong conviction as to the correctness of its final decision, it nevertheless graciously provided movants with a gratuitous 60-day stay. could meet It did not grant that stay because it felt movants the standard for a stay pending an appeal under Federal Circuit law; and movants’ pending motion offers nothing to cause the Court to reconsider that conclusion. of the limited opportunity to stay was pursue an simply to expedited provide appeal The purpose movants with the with an Federal Circuit, including the possibility of an extension of the stay by the Federal Circuit. As an aside, the Court would certainly expect that the Federal Circuit would require movants to post a supersedeas bond to protect parties during an appeal. the interests of the prevailing Whether such a stay is granted by the 3 Federal Circuit does not concern this Court. seeks to make clear that its sua sponte This Court simply imposition of the present 60-day stay does not reflect any equivocation by this Court as to its findings of fact and conclusions of law. IT IS SO ORDERED, this 30th day of June, 2011. s/Clay D. Land CLAY D. LAND UNITED STATES DISTRICT JUDGE 4

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