Defending an injunction application

Defending an injunction application

The issue

Our client is a generic pharmaceutical company. It wanted to launch a generic alternative of a formulation of a drug that was patented, in the UK and elsewhere. Its objectives were to do whatever was necessary to ensure that, no interim injunction was awarded against it following the extensive marketing that it had done prior to launch and, if sued, it would be in the best position possible to defend the action and ultimately win.

How we helped achieve our client’s goals

We knew that if that application was going to be made, there would be very little time to put the evidence together, so began preparing evidence to defend a possible application around three months before the expected launch of our client’s drug. In fact, when the application to the Court came, we had less than 2 working days before the hearing. Having had so much time to prepare the evidence, our evidence was detailed, thorough and, most importantly, extremely convincing. As a result, even though our client was the defendant, we were not only able to get our evidence to the judge before the patentee but, critically, we had done enough to persuade the judge not to grant an interim injunction, achieving our client’s goal.

During this period, we were also working on preparing the evidence we would need to defend a patent action at trial. Finding an appropriate expert witness was a particularly time-consuming, but vitally important aspect of the case. Through the network of contacts and experts that we have used in the past, we were able to identify the most appropriate candidate.

To keep any potential damages awarded against our client to a minimum, were they to lose at trial, we were able to move the action on for trial in less than four months from its commencement, due to this tactic of advance preparation. The trial lasted 4 days. We won. The patent was revoked. Our client received a good proportion of its costs back from the patentee and an interim payment of costs within 28 days. In addition, the costs that we incurred were (roughly) one third less than the costs incurred by the patentee.