Interlocutory injunctions roll on

The granting of interlocutory injunctions continues apace with Ryan J in Wake Forest University Health Sciences v Smith & Nephew Pty Ltd [2009] FCA 630 ordering Smith & Nephew be restrained from commercial dealings in their Negative Pressure Wound Therapy Foam Dressing Kits said to be an infringement of Wake Forest’s patent.

While there were clearly issues in dispute regarding whether the patent was infringed and whether the patent was liable to be found invalid on various grounds, the Court considered that on balance the patentee had satisfied the requirement of a serious question to be tried.  In relation to the adequacy of damages as a remedy, as in Tramanco Pty Ltd v BPW Transpec Pty Ltd[2009] FCA 509 noted the Court placed some reliance on the fact that the patented product comprised a significant proportion of the applicant’s business in Australia. Ryan J noted that the healthcare market in which the parties operated was said to be “extremely sensitive to fluctuations in the prices of comparable goods” and considered that:

An interim entry into the market by Smith & Nephew would disturb KCIM’s monopoly over the supply of NPWT foam dressing kits and associated medical devices, and would be likely to alter the market in ways which are not readily predictable or for which an award of pecuniary damages would not afford adequate compensation.

Assessing the balance of convenience, the Court had little sympathy for the arguments of Smith & Nephew based on repercussions it said would follow from the granting of an injunction, noting that:

Having elected to enter the market without first seeking to clarify the validity of the Patent, it should not readily be allowed to take advantage of the uncertainty which its own conduct has fostered.

This and other recent decisions suggest that provided the argument for infringement is not obviously weak and there are no clear grounds of invalidity, a patentee who acts quickly is likely to be in a strong position to obtain an interlocutory injunction restraining infringement.