976 F.2d 735 (7th Cir. 1992), 92-3002, Abbott Laboratories v. Mead Johnson & Co.

Docket Nº:92-3002.
Citation:976 F.2d 735
Party Name:ABBOTT LABORATORIES, Plaintiff-Appellee, v. MEAD JOHNSON & COMPANY, Defendant-Appellant.
Case Date:September 23, 1992
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 735

976 F.2d 735 (7th Cir. 1992)

ABBOTT LABORATORIES, Plaintiff-Appellee,

v.

MEAD JOHNSON & COMPANY, Defendant-Appellant.

No. 92-3002.

United States Court of Appeals, Seventh Circuit

September 23, 1992

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA7 Rule 53 regarding use of unpublished opinions)

Argued Sept. 10, 1992.

24 U.S.P.Q.2d 1639

Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division, No. IP91-202C; William E. Steckler, Judge.

S.D.Ind.

AFFIRMED IN PART, MODIFIED, AND REMANDED.

Order

Our initial opinion, issued on July 23, vacated the denial of preliminary relief and ordered the district judge "to promptly commence a full trial on the merits." Slip op. 1. Later we defined prompt as "within 60 days." Slip op. 30. We anticipated that trial was just around the corner in part because the hearing concerning preliminary relief, which lasted ten days, showed that both sides were well prepared, and in part because at oral argument both sides represented that they would be ready for trial soon. Only Mead Johnson suggested a need to gather additional information, and the study that Mead was conducting has been completed.

In case something held up the trial, we stated, the district judge must "fashion preliminary relief ... in accordance with this opinion." Slip op. 29. The opinion had observed that preliminary relief should take an intermediate form--less than the exclusion of Ricelyte TM from the market (which Abbott Laboratories had demanded) but more than nothing. Exclusion, we thought, was excessive, because it would restore Abbott's monopoly position, to the detriment of consumers. We did not require the district court to bar the use of the name Ricelyte TM. Although the name misleads when used in connection with the ad campaign showing grains of whole rice falling into solution, it is not false: Mead's electrolyte is indeed derived, albeit remotely, from rice.

On remand, Mead announced that it was ready for trial. Abbott resisted, stating that so long as Mead wanted to present the case anew before a jury, it needed discovery into damages. (It had sought none while the appeal was pending.) The state of the district judge's health was a greater obstacle. The judge informed the...

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