Preliminary Injunctions Post-Mayo and Myriad

Abstract

The Supreme Court's recent interest in patentable subject matter has had several, unexpected downstream effects on preliminary injunctions in patent disputes.

The Supreme Court has recently expressed increased interest in patent eligibility, or patentable subject matter, the doctrine that limits the types of inventions eligible for patenting. Its two decisions, Mayo Collaborative Services v. Prometheus Laboratories, Inc., in 2012, and Association for Molecular Pathology v. Myriad Genetics, Inc., in 2013, represented the first broad restrictions on patentable subject matter in over thirty years. And later this term, the Court will decide yet another patent eligibility case: Alice Corp. v. CLS Bank International. While the effects of the Mayo and Myriad decisions on patent law have been widely discussed, they have recently played a fascinating — and less explored — role in another area of law: preliminary injunctions. In several recent patent cases, the contours of Mayo and Myriad have driven district courts to deny preliminary injunctions on patent eligibility grounds. This has subtly altered the texture of the preliminary injunction standard in patent infringement disputes, causing district courts to place greater emphasis on difficult, scientifically complex questions of patent eligibility at nascent stages of litigation. While time — and appeals — will tell whether this change remains viable, this shift in the preliminary injunction standard provides a fascinating, practical case study as to one law: the law of unintended consequences.

Keywords: patents, biosciences, law, preliminary injunctions, civil procedure, litigation, mayo, myriad, supreme court, patentable subject matter, patent eligibility, section 101