Early last week the Federal Court granted two interlocutory injunctions to restrain alleged patent infringement in Alphapharm Pty Limited v Wyeth FCA 945 and Medrad Inc v Alpine Medical Pty Ltd  FCA 949.
There appears to have been a recent shift in the Federal Court’s approach to interlocutory injunction applications, with at least five such injunctions granted so far this year.
In both Alphapharm and Medrad, the Court reaffirmed that following the decision of Gummow J in Martin Engineering v Trison Holdings, the approach taken by the High Court in Beecham Group v Bristol Laboratories was no longer applicable. Accordingly, it is not necessary that the patentee show a strong prima facie case for the validity of the patent and indeed even if the alleged infringer shows a prima facie case of invalidity, this will not in and of itself defeat the injunction application.
On the question of the balance of convenience and adequacy of damages, both Jagot J in Alphapharm and Kenny J in Medrad were influenced by the likely impact on “trade patterns” resulting from the entry of a competing product into a market where there was an existing monopoly. In Alphapharm, the alleged infringer sought to minimise this consideration by pointing to the fact that the patentee had itself introduced a product into the market which was likely to compete with the product the subject of the patent. However Jagot J gave little weight to this argument, noting that:
it is one thing for a patentee to obtain a patent for a new product and place that new product on the market anticipating that it may have some effect on its existing product. It is another altogether for a patentee with a reasonably strong prima facie case for infringement to be exposed to competition against its existing product by an allegedly infringing product while the claim is resolved.