Injunctive relief for life sciences companies
An injunction is a court order that requires a party to either (i) take a particular action (a mandatory injunction) or (ii) to refrain from taking a particular action (a prohibitory injunction). For example, an injunction to restrain Company A infringing the patents of Company B or an injunction to restrain Company A from wrongfully using trade secrets belonging to Company B.
An injunction may be temporary, in place until judgment is entered (an interim injunction), or permanent, continuing after the conclusion of proceedings either perpetually or until a specified date (a final injunction).
An injunction is an equitable remedy. The court has discretion to grant an injunction “in all cases in which it appears to the court to be just and convenient to do so”. If a party breaches the terms of an injunction, it may be held in contempt of court, which is punishable by a fine or imprisonment.
Grounds for an injunction
In order for the court to consider granting an injunction, the party seeking injunctive relief must be able to establish:
- There is a substantive cause of action (i.e. there is a serious question to be considered in the underlying claim), and the other party is either threatening to invade (or has invaded) your equitable rights or is threatening to behave (or has behaved) in an unconscionable manner.
- The balance of convenience test is met – the court will weigh up the likely inconvenience or damage that would be suffered by the applicant if the injunction is not granted against the likely inconvenience or cost for the respondent if it is. An injunction is unlikely to be granted if damages would be an adequate remedy for the applicant if he succeeds at trial.
- It is just and convenient to grant the injunction, and no equitable bars exist (e.g. undue delay or unreasonable conduct on the part of the applicant).
The English courts have shown that they are prepared to adopt a flexible and creative approach to the type of injunctive relief they are willing to grant applicants in life sciences claims. In this regard, the court will not only consider the interests of the parties themselves but it will also consider the wider public interest.
Urgent injunctive relief
There is a lot of potential for intellectual property infringement in the life sciences sector, particularly given the wide variety of patent claims that could cover products in the industry. The increased use of software as a medical device also gives rise to potential copyright, trademark and design right claims. In addition, general commercial issues can arise, such as breach of contract, breach of confidence, dealings with competitors’ customers or suppliers, and those touching upon employment issues where, for example, restrictive covenants have not been followed. It is not uncommon for urgent injunctive relief to be sought in the life sciences sector.
In an emergency, an injunction can be obtained very quickly without giving notice to the other party. Urgency arises most often where the other party would take advantage if given notice of the application or where further damage would result from any delay in making the application.
If you’re arbitrating, don’t forget…
Typically, a number of disputes in the life sciences sector proceed down the arbitration route rather than the court route. This does not necessarily mean that you cannot go to court to seek an injunction, but it will therefore be important for parties to check the relevant arbitration agreement or institutional rules as to the emergency relief available.