
    CELSIS IN VITRO, INC., Plaintiff-Appellee, v. CELLZDIRECT, INC. and Invitrogen Corporation, Defendants-Appellants.
    No. 2010-1547.
    United States Court of Appeals, Federal Circuit.
    Dec. 8, 2010.
    Before GAJARSA, SCHALL, and MOORE, Circuit Judges.
   ON MOTION

ORDER

SCHALL, Circuit Judge.

CellzDirect, Inc. and Invitrogen Corporation (CellzDirect) move for a stay, pending appeal, of the preliminary injunction issued by the United States District Court for the Northern District of Illinois. Celsis In Vitro, Inc. (Celsis) opposes. CellzDirect replies. Celsis moves to strike CellzDirect’s reply. CellzDirect opposes.

Celsis sued CellzDirect for infringement of its patent related to methods of making and using multi-cryopreserved hepatocytes. On September 7, 2010, the district court granted Celsis’ motion for a preliminary injunction, finding that Celsis had established a likelihood of success on the merits of its patent infringement claim, that Celsis had shown it would be irreparably injured absent the injunction, and that the balance of hardships favored Celsis.

CellzDirect appeals the order granting the preliminary injunction and moves to stay the injunction pending disposition of its appeal by this court. To obtain a stay, pending appeal, a movant must establish a strong likelihood of success on the merits or, failing that, nonetheless demonstrate a substantial case on the merits provided that the harm factors militate in its favor. Hilton v. Braunskill, 481 U.S. 770, 778, 107 S.Ct. 2113, 95 L.Ed.2d 724 (1987). In deciding whether to grant a stay, pending appeal, this court “assesses the movant’s chances of success on the merits and weighs the equities as they affect the parties and the public.” E.I. DuPont de Nemours & Co. v. Phillips Petroleum Co., 835 F.2d 277, 278 (Fed.Cir.1987). See also Standard Havens Prods. v. Gencor Indus., 897 F.2d 511 (Fed.Cir.1990).

Based upon the papers submitted, and without prejudicing the ultimate disposition of this case by a merits panel, we determine that CellzDirect has not established the requisite likelihood of succeeding on the merits and thus has not met its burden to obtain a stay, pending appeal.

Accordingly,

It Is Ordered That:

(1) CellzDirect’s motion to stay the preliminary injunction is denied. This court’s temporary stay of the injunction is lifted.

(2) Celsis’ motion to strike is denied.

(3) Any other pending motions are moot.  