The hearing on Myriad’s motion for a preliminary injunction against Ambry Genetics is scheduled for September 11, 2013, before Judge Robert A. Shelby at the U.S. District Court for the Central District of Utah. The primary question before the court is whether it should issue a preliminary injunction to stop Ambry from selling its allegedly infringing genetic screening tests while the patent infringement case proceeds.
As discussed in this article, the judge will have to decide whether Myriad has shown that it is likely to prevail on the merits on the issues of validity and infringement, whether Myriad will suffer irreparable harm if a preliminary injunction is not granted, whether the balance of hardships tips in Myriad’s favor, and whether a preliminary injunction would serve the public interest. Ambry has taken the position that the newly asserted Myriad claims are so plainly invalid in view of the Supreme Court decision that invalidated other Myriad claims that Myriad’s attempt to enforce them amounts to an antitrust violation. However, I think it is a closer call, at least for some of the claims, as explained in this article.
While it is not likely that Judge Shelby will rule from the bench, it will be interesting to see if the proceedings give any indication of his likely decision. Even though his decision will not be binding on other courts or the USPTO, it is likely that a decision denying the preliminary injunction due to questions of validity would send further ripples of uncertainty throughout the biotech industry.