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)

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

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