Earlier today, the Federal Circuit issued its opinion in an appeal from a preliminary injunction grant. The case is Sanofi-Synthelabo v. Apotex, No. 06-1613 (Fed. Cir. Dec. 8, 2006). The court affirmed Sanofi’s preliminary injunction against Apotex.

The case is an important one, for at least two reasons:

1. By my reckoning (tracking all post-eBay injunction cases), this is the first time since the Supreme Court’s May 15, 2006, decision in eBay v. MercExchange that the Federal Circuit has affirmed a preliminary injunction. In Abbott Labs. v. Andrx Pharms., 452 F.3d 1331 (Fed. Cir. June 22, 2006), the court reversed the preliminary injunction on the ground that Teva had raised a substantial question about the validity of each of Abbott’s asserted patent claims. In Wireless Agents LLC v. Sony Ericsson Mobile Communications, 189 Fed. Appx. 965 (Fed. Cir. July 26, 2006), the court affirmed the denial of a preliminary injunction, and failed to mention eBay at all.

2. The court, in this Sanofi case, expressly notes – and refuses to rule on – the question whether the presumption of irreparable harm that followed from a likelihood of success showing survives the Supreme Court’s eBay decision. (I have blogged about the different approaches the trial court’s have taken to the presumption, post-eBay, here, here, and here.) The court notes, on p. 20 of the slip opinion, that the trial court had “applied a presumption of irreparable harm in light of its conclusion that Sanofi established a likelihood of success on the merits.” In addition, however, the trial court had “also found that Sanofi proffered substantial evidence establishing other forms of irreparable harm.” Slip op. at 20. The Federal Circuit, for its part, affirmed on the basis of the trial court’s more detailed findings … not on the basis of the presumption. Slip op. at 20-22.

On the presumption’s continuing vitality, post-eBay, the Federal Circuit would say only this:

Apotex also argues that the district court erred by applying a presumption of irreparable harm because Sanofi established a likelihood of success on the merits. Apotex contends that applying such a presumption is in direct contravention of the Supreme Court’s decision in eBay v. MercExchange. Because we conclude that the district court did not clearly err in finding that Sanofi established several kinds of irreparable harm, including irreversible price errosion, we need not address this contention.

Slip op. at 22 n.9. It is interesting, too, that this is the one and only place in the opinion that eBay is mentioned.