SUBSTANTIAL QUESTION DOES NOT DESTROY THE LIKELIHOOD OF SUCCESS

Abbott Laboratories, v. Sandoz, Inc., [2007-1300] (October 21, 2008) [NEWMAN, Archer, Gajarsa) The Federal Circuit affirmed the grant of a preliminary injunction.
DISCUSSION: On appellate review of the grant of a preliminary injunction, the question "is simply whether the issuance of the injunction constituted an abuse of discretion." "It is well settled that the granting of a temporary injunction, pending final hearing, is within the sound discretion of the trial court; and that, upon appeal, an order granting such an injunction will not be disturbed unless contrary to some rule of equity, or the result of improvident exercise of judicial discretion." Abuse of discretion is established "by showing that the court made a clear error of judgment in weighing relevant factors or exercised its discretion based upon an error of law or clearly erroneous factual findings."
On the question of obviousness, the Federal Circuit said that the Court in KSR did not create a presumption that all experimentation in fields where there is already a background of useful knowledge is "obvious to try," without considering the nature of the science or technology. Each case must be decided in its particular context, including the characteristics of the science or technology, its state of advance, the nature of the known choices, the specificity or generality of the prior art, and the predictability of results in the area of interest.On the question of injunction, the Federal Circuit said that Supreme Court precedent, every regional circuit, and controlling Federal Circuit precedent, apply to the preliminary injunction the combination of criteria that includes likelihood of success on the merits and equitable considerations. No other court has held that when the attacker has presented a “substantial question” on its side of the dispute – that is, more than a scintilla but less than a preponderance of evidence in support of its side – no injunction pendente lite is available.