tag:blogger.com,1999:blog-1949935810569534550.post7041483214527115682..comments2023-08-17T14:09:24.945+01:00Comments on PatLit: the patent litigation weblog: A less than overwhelming case for an injunctionUnknownnoreply@blogger.comBlogger1125tag:blogger.com,1999:blog-1949935810569534550.post-46026537127390348562010-11-22T13:05:06.444+00:002010-11-22T13:05:06.444+00:00The view that the merits should not be considered ...The view that the merits should not be considered made sense in the context of Cyanamid itself, where the merits were very difficult to assess, but it does not make sense in general. A sound principle was stated by Hoffmann J in Films Rover International Ltd v. Cannon Film Sales Ltd., [1986] 3 All E.R. 772:<br /><br /> “The principal dilemma about the grant of interlocutory injunctions, whether prohibitory or mandatory, is that there is by definition a risk that the court may make the ''wrong'' decision, in the sense of granting an injunction to a party who fails to establish his right at the trial (or would fail if there was a trial) or alternatively, in failing to grant an injunction to a party who succeeds (or would succeed) at trial. A fundamental principle is therefore that the court should take whichever course appears to carry the lower risk of injustice if it should turn out to have been ''wrong'' in the sense I have described. The guidelines for the grant of both kinds of interlocutory injunctions are derived from this principle.”<br /><br />This principle requires the merits to be taken into account, but there is no net effect when, as in Cyanamid, neither side has a clear advantage. (See similarly American Hospital Supply Corp. v. Hospital Products Ltd. (1986), 780 F.2d 589 (7th Cir.) per Posner J., esp. at 598.) Films Rover was an application for a mandatory injunction, and the application of the “least risk of injustice” seems to be accepted in English law in that context (see See Zockoll Group Ltd v. Mercury Communications Ltd.., [1998] F.S.R. 354 (C.A.)), but as Hoffmann J expressly stated, there is no reason in principle why it should not apply more generally. <br /><br />Jacob J made this point in Smithkline Beecham plc v. Generics (UK) Ltd., 2001 WL 1346930, October 23, 2001 (Pat) (2002) 25 I.P.D. 25,005: <br /><br />“I have always, myself, found the decision in Cyanamid, if generalised, to cause difficulties. Hoffmann J. once spoke of "the balance of the risk of injustice" to one party or the other. To ignore the balance of who was likely to win in assessing the balance of risk has always seemed to me to be a strange thing to do in principle. It is not a course which is followed in most jurisdictions around the world with which I am familiar; for instance, Germany, France, Holland and the United States.<br /><br />Of course, if the case is one in which an assessment of the likelihood of prospects of success is, itself, going to be long, protracted and involved, then one is really saying that one cannot make a proper assessment of risk in that regard. Such was the case in American Cyanamid itself where the argument in the Court of Appeal alone took eight days. In principle, the Cyanamid rules make particular sense when one cannot reasonably assess the prospects of success of either side.”<br /><br />Unfortunately, he did not take this any further: “There may come a time when the extension of the Cyanamid principle to cases where the court can make a reasonable assessment of the prospects of success should be re-examined by the House of Lords. That is not this case. I have come to the clear conclusion that I am quite unable to decide the relative strengths of the parties' contentions.”<br /><br />See also Robin Jacob, "Intellectual Property" in Blom-Cooper, Dickson & Drewry, eds., The Judicial House of Lords, 1876-2009 (Oxford: Oxford University Press, 2009) at 719 explaining why "I have long thought that [Cyanamid] was wrong and harmful."Normanhttps://www.blogger.com/profile/17573687140337856397noreply@blogger.com