Context: On Friday (July 11, 2025), Judge Richard Andrews of the United States District Court for the District of Delaware, unconvinced of MSN’s alleged infringement of an Entresto-related patent (chronic heart disease medication), denied Novartis an injunction (July 14, 2025 ip fray article). An injunction over a different patent has meanwhile expired, all of which would enable MSN’s sale of an Entresto alternative as of today (July 16, 2025). But we explained in our previous article on this dispute that an emergy motion for an injunctio pending appeal was a likely next step.
What’s new: Novartis has indeed brought the motion we anticipated, though raising primarily the issue of the district court’s reliance on non-skilled-artisan testimony and addressing only secondarily the question of whether an adverse inference resulting from one defendant’s discovery efforts should benefit another defendant. The United States Court of Appeals for the Federal Circuit has entered a short-term injunction, barring MSN from the sale of its accused product (a generic version of Entresto) in the United States until the patent-specialized appeals court has decided on whether to grant Novartis an injunction pending the appeal, which would practically mean an injunction for the remaining life of the patent-in-suit. Novartis has to post a bond, the amount being determined by the district court, to make MSN whole for the event that Novartis loses the case.
Direct impact: At minimum, Novartis has gained an extra week. MSN has until Friday (July 18, 2025) to respond. The deadline for Novartis’s reply brief is close of business on Monday (July 21, 2025). This means the earliest date on which MSN could receive green light for its release would be Tuesday (July 22, 2025), with a decision probably coming down late in the day and sales couldn’t start before the following day. It can also take longer. The Federal Circuit obviously hasn’t prejudged the case and many injunctions of this kind are short-lived, but it wouldn’t have granted this emergency relief if Novartis’s arguments had been facially weak.
Wider ramifications: As a result of eBay v. MercExchange, the United States is a difficult jurisdiction to win patent injunctions, but the life sciences sector is different because irreparable harm from infringing rival products is easier to establish and far fewer patents read on a single product (often just one, sometimes two, rarely more than three).
Here’s the Federal Circuit’s order granting an injunction for the time it takes the appeals court to resolve Novartis’s motion for an injunction pending the entire appellate proceedings:
At this stage, the court just decides what happens without explaining its reasoning. It would be a gross exaggeration to see Novartis on the winning track, and the hurdle remains high, but it is fair to say that its appeal has at least some traction at this stage.
Here’s the motion, which mentions the adverse inference over a different defendant’s discovery but puts a different issue (reliance on testimony of an expert who had conceded that he did not have the knowledge of the person skilled in the art as determined by the court) front and center:
Court and counsel
The order was entered by Clerk of Court Jarrett B. Perlow. The decision was presumably made by a three-judge motions panel.
Novartis’s emergency motion was filed by Venable LLP’s Nicholas N. Kallas, Jared L. Stringham, Christina A. L. Schwarz and Christopher F. Loh.
For MSN, RMMS Legal’s William A. Rakoczy, Deanne M. Mazzochi and Kevin E. Warner as well as Daignault Iyer‘s Richard Juang have entered their appearance in these appellate proceedings.