for patent trial judges?
The question before the Court of Appeal was whether, in awarding damages of over £27 million to pharmaceutical companies for their losses resulting from an interim injunction restraining the launch of a non-infringing generic version of esomeprazole for a year, the trial judge -- Mr Justice Sales (not a specialist patent judge), was in error. Sales J's decision is noted on PatLit here. The point of the matter was that, but for the injunction, those companies would have entered the market for esomeprazole with full force and effect, and the sum awarded took account of the success they would have achieved and the profits they would have made, subject to an appropriate 20 per cent discount to reflect the various uncertainties inherent in that assessment. The award of £27 million was the largest ever made by the Patents Court on an enquiry of damages of this kind.
Essentially, said the Court of Appeal, Sales J had got it right and had was entitled to reach the conclusion which he had done, on the basis of the evidence before him. The assessment of damages was compensatory, not punitive, and while some of the reasoning was "concise" it was not (as counsel for the appellants had suggested) "wholly inadequate".
This blogger welcomes more concise reasoning in the decisions of trial judges. They are easier to follow and, in his opinion, less likely to result in an appeal since there's not so much rope with which trial judges can hang themselves.