Preliminary Injunctions Post-Mayo and Myriad

Stanford Law Review Online, Vol. 67, pp. 1-8, 2014

8 Pages Posted: 13 Jun 2014

See all articles by Jacob S. Sherkow

Jacob S. Sherkow

New York Law School; Center for Advanced Studies in Biomedical Innovation Law

Date Written: May 5, 2014

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

Suggested Citation

Sherkow, Jacob S., Preliminary Injunctions Post-Mayo and Myriad (May 5, 2014). Stanford Law Review Online, Vol. 67, pp. 1-8, 2014. Available at SSRN: https://ssrn.com/abstract=2449020

Jacob S. Sherkow (Contact Author)

New York Law School ( email )

185 West Broadway
New York, NY 10013
United States
212.431.2355 (Phone)

HOME PAGE: http://www.nyls.edu/faculty/faculty-profiles/faculty_profiles/jacob-s-sherkow/

Center for Advanced Studies in Biomedical Innovation Law ( email )

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Studiestrade 6
Copenhagen, DK-1455
Denmark

HOME PAGE: http://jura.ku.dk/cebil/staff/

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