Damages would be adequate remedy in patent infringement proceedings

By: Ian Fitzharris BL

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High Court refuses to grant interlocutory injunctive relief to a large pharmaceutical company seeking to prevent the alleged infringement of its patent of a pharmaceutical drug by the respondent global competitor, on the grounds that it would be possible to assess the level of damages due to the applicant if an injunction was refused but it were later to succeed at the trial of the action (concerning the validity and application of the drug's patent), in circumstances where the alleged loss of market share, market position and negative impact on the applicant's current global workforce are all measures which are capable of quantification in the event that damages would be required to be assessed.

Interlocutory injunction - application to restrain production of drug for treatment of multiple sclerosis on basis of alleged patent infringement - pharmaceutical - no defence or counterclaim delivered - patent validity in Ireland - US appeal proceedings in being in relation to determination by US Patent Office that patent in question is unpatentable in that jurisdiction - patent development in other European jurisdictions - issues ventilated in correspondence between parties - alleged manufacture of product in breach of plaintiff's exclusive rights - alleged loss and damage - property rights infringements - full defence will be lodged which will dispute centrality of plaintiff's claim that patent is valid - test to be applied - whether application tainted by delay and by the fact that similar applications in the United States have failed - application of 'Campus Oil' test - serious issue to be tried accepted - low threshold - adequacy of damages for applicant - not satisfied as a matter of probability that it would be impossible for a court to assess damages at trial - loss of market share, change in market position is calculable - data is available regarding weekly prescriptions to assist calculation of damages - damages may be claimed in the proceedings - inadequate evidence put before the court on the alleged negative impact on applicant's staff were an injunction to be refused.

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