Interim injunctions involve not only legal principles, but also a more visceral appeal to the judge’s perception of what is fair and right. The judge needs to make the assessment quickly and on the basis of limited evidence. Yet the decision is incredibly important and will often put an end to the entire case – especially in the IP context.
As a result, interim injunction applications typically involve lots of tactical maneuvering. Each party does its best to commandeer the moral high ground, and to get the judge’s sympathy regarding the effects of the injunction (or the lack of it).
The value of measured, tactical concessions can be seen in a recent UK patent case, Evalve Inc v Edwards Lifesciences Ltd [2019] EWHC 1158 (Pat). There, the defendant’s concessions were enough to fend off the injunction altogether.
Background
Both the claimant’s product, the MitraClip, and Edwards’ product, PASCAL, are medical devices used to treat a life-threatening condition in which the mitral valve of the heart ceases to function properly.
The claimant alleged that PASCAL infringed two of its patents, and sought an interim injunction to restrain Edwards from marketing it until judgment on a full trial. Edwards denied infringement and counterclaimed for invalidity of both patents.
Tactical concessions and undertakings
Edwards made four tactical concessions that tilted the analysis in its favour.
First, Edwards conceded that there was a serious question to be tried. Much to the Judge’s relief, neither party addressed him on the merits of the claim for infringement, or the counterclaim for invalidity. The evidence on these matters would have been extensive, so this strategy limited Edwards’ exposure in relation to costs.
Secondly, Edwards accepted that for the purposes of any inquiry into damages or other financial relief, each sale made by Edwards would be a sale lost to Abbott. This tactic took a lot of the wind out of the “damages can’t be quantified” argument. (Obviously, you wouldn’t want to make this concession in a market where there were many providers of competing products, but it is a useful strategy where patent protection means that the incumbent provider is in a monopoly position.)
Thirdly, Edwards undertook to limit the number of PASCAL procedures that were carried out pre-trial to a certain number. This affected both the quantification of damages and the balance of convenience.
Fourthly, Edwards agreed that it would not rely on the fact that it had arranged those procedures in order to resist a final injunction. It would still resist the final injunction, but only on the basis that PASCAL had clinical advantages and it would be contrary to the public interest to impose the injunction, not on the basis that Edwards had already entered the market.
There are two further tactical cards that Edwards could have played, and which it chose not to:
- Edwards unsuccessfully opposed an application for an expedited trial. Potentially, Edwards could have agreed to an expedited trial and then relied upon that agreement as a further justification weighing against an interim injunction.
- Edwards filed extensive evidence attempting to establish that PASCAL is clinically superior to the MitraClip. These are life-saving devices, and the public interest could be engaged if the other factors were evenly balanced. Predictably though, once the respective clinical benefits were put in issue, the volume of evidence spiralled out of control. The cost of this part of the evidence alone was over £100,000. Edwards could have elected not to adduce such evidence in order to limit the costs exposure.
If I had been running the case for Edwards, I think I would still have run the public interest evidence, despite the costs, because it can be so important. For example, in a recent New Zealand case involving brackets that accommodate vertical displacement of partition walls – important for rebuilding work after earthquakes – the public interest factor was critical.[1]
A novel argument
I was surprised by one of the arguments raised by the claimants in favour of the injunction as it seemed fairly ambitious to me. I’d be interested to hear what others think.
The claimants argued that the injunction should be granted because if PASCAL came onto the market for a little while and was later forced out by Abbott at the full trial, this could look bad for Abbott and affect its relations with clinicians. Abbott may be seen as responsible for removing a treatment option from the market, which would be contrary to the interests of doctors and patients and could reflect poorly on its reputation.
On the facts, Carr J didn’t accept that there was a real reputational risk. My reaction, though, was to ask why any of this should be Edwards’ problem? If driving another party out of the market by enforcing your patent rights looks bad, then so be it. That is precisely what Abbott was doing. I don’t think the court should be asked to conceal that reality from the market, and arguably it shouldn’t have been a factor taken into account in deciding the interim injunction.
Conclusion
Even in
hard-fought litigation – and perhaps especially in hard-fought litigation – making
calculated tactical concessions can help to win the wider war.
[1] Tracklok Ltd v T & R Interior Systems Ltd [2019] NZHC 1331.
