This morning, the High Court of England and Wales handed down an unprecedented judgment which will impact on the complex financial assessment that every company has to make before asking the Court to grant an interim injunction pending trial.
The judgment is the latest in an ongoing dispute which is the first case in recent times in which the Court has been asked to consider the level of damages payable under a cross undertaking given in exchange for an interim injunction in a patent case. In an unusual twist, the judgment ... found that Apotex should pay back to Servier the £17.5 million plus interest that Servier was ordered to pay to Apotex in 2008 after the hearing of the damages inquiry. Liz Cohen, Partner at Bristows comments:
"... As a matter of public policy, a party should not be able to claim compensation for being prevented from infringing one patent on the basis that it would have infringed another patent, if the injunction had not been granted. It further reinforces the principle that there is no automatic right to compensation under a cross undertaking. This will undoubtedly impact on the complex financial assessment that every company has to undertake before launching a product at risk in the UK”It's most unusual for a judge an IP proceedings of this nature to have the chance to apply the principle of ex turpi causa, and Mr Justice Arnold was swift to take the opportunity to do so.
Servier appealed this decision to the Court of Appeal. In February 2010, the Court of Appeal allowed Servier’s amendment and on 15-16 March 2011, the High Court heard the public policy issues relating to Servier’s amended pleading. The judgment handed down this morning reflects the finding of the High Court that Apotex should not be able to rely upon its own illegality to benefit from the cross undertaking given by Servier".