AMERICAN CYANAMID V ETHICON PDF

In American Cyanamid Co v Ethicom Ltd [] AC , the court developed a set of guidelines to establish whether an applicant’s case merited the granting of . Where an interlocutory injunction is sought, the balance of convenience will be the overriding consideration. P applied for an interlocutory injunction to prevent D . Parliamentary Archives,HL/PO/JU/4/3/ HOUSE OF LORDS. AMERICAN CYANAMID. N LIMITED. Lord DiplockViscount DilhorneLord Cross of.

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Go to Your Lordships should in my view take this opportunity of declaring thatthere is no such rule. The hearing there took eightJays. In addition there was a special factor to which Graham J.

If there is a serious issue to be tried it will lead to a just result and mini-trials on the application for an interlocutory injunction would be prevented. The following additional cases were cited in argument: Such damage as the plaintiffs might suffer, prior to judgment, if they succeed at the trial, will not have any material effect on their annual profit and loss account and that damage can easily be met by the defendants.

The hearing of the motion before Graham J. This limitation will apply notwithstanding any failure of essential purpose of any limited remedy provided herein. In the present case Graham J. Held, allowing the appeal, 1 that in all cases, including patent cases, the court must determine the matter on a balance of convenience, there being no rule that it could not do so unless first satisfied that, if the case went to trial on no other evidence than that available at the hearing of the application, the plaintiff would be entitled to a permanent injunction in the terms of the interlocutory injunction sought; where there was a doubt as to the parties’ respective remedies in damages being adequate to compensate them for loss occasioned by any restraint imposed on them, it would be prudent to preserve the status quo post, pp.

As to inutility, see Terrell on the Law of Patents, 12th ed. I agree with it and that this appeal should beallowed and the Order of Graham J. The relevant authorities are Preston v. If an interlocutory injunction is granted and the defendants succeed at the trial, the plaintiffs will have to pay them such damages as are attributable to the injunction. Court of Appeal in Northern Ireland22 Nov Where other factors appear to be evenly balanced it is a counsel ofprudence to take such measures as are calculated to preserve the status quo.

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American Cyanamid principles | Practical Law

They were made from animal tissues popularly known as catgut. It is given on affidavit and has not been tested by oral cross-examination. Lacking in this experience, an appellate court should be hesitant to overrule his exercise of his discretion, unless they are satisfied that he has gone wrong in law.

The differing decisions of the Court of Appeal and the judge on the merits show that there is a serious question to be tried. If the plaintiffs have made their specification needlessly obscure, they should not be given interlocutory relief and should wait till they have proved their case for a monopoly in court.

The learned Judge helpfully referred to previous authorities which seemingly adopted different approaches before drawing out a distinction between them, namely by reference to establishing the commercial intentions of the parties when they entered into the underlying contractual arrangement.

Whether there are any special factors. Someone using a copolymer is not doing something covered by this invention and he should not be held to be within the dyanamid. They are all different ways of sayingthat if the claim is construed widely it includes copolymers which will nothave as surgical sutures the characteristics described in the body of the patent.

He therefore feltentitled to consider the balance of convenience.

So hegranted Cyanamid an interlocutory injunction restraining Ethicon frominfringing the patent until the trial or further order. One of the reasons for the introduction of the practice of requiring an undertaking as to damages upon the. But unless the specification is so framed, the claim cannot be made in that way: This was that, once doctors and patients had got used toEthicon’s product XLG in the period prior to the trial, it might well becommercially impracticable for Cyanamid to deprive the public of it byinsisting on a permanent injunction at the trial, owing to the damaging effectwhich this would have upon its goodwill in this specialised market andthus upon the sale of its other pharmaceutical products.

There is no suggestion that they would not be good for any damages which might be awarded against them if they lost the action eventually. It erred in holding that the appellants had not established that prima facie the patent in suit would be infringed by the marketing of the respondents’ suture.

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Arthurs v News Group Newspapers Ltd. My Lords, when an application for an interlocutory injunction to restraina defendant from doing acts alleged to be in violation of the plaintiff’s legalright is made upon contested facts, the decision whether or not to grant aninterlocutory injunction has to be taken at a time when ex hypothesi theexistence of the right or the violation of it, or both, is uncertain and willremain uncertain until final judgment is given in the action.

The suggested distinction between what the plaintiff mustestablish as respects his right and what he must show as respects its violationdid not long survive. Relics of this reluctance to enforce a monopoly that was challenged, eventhough the alleged grounds of invalidity were weak, are to be found in thejudgment of Scrutton L.

The instant appeal affords one example of this.

American Cyanamid principles

It would be unwise to attempt even to list all the various matters which may need to be taken into consideration in deciding where the balance lies, let alone to suggest the relative weight to be attached to them.

The balance of convenience is against the granting of an interlocutory injunction. It was in order to enable the existence of any suchrule of law to be considered by your Lordships’ House that leave to appealwas granted. There will be no simple basis on which to assess it since it must depend on an estimate of the amount of business the defendants would have done during the period of the injunction and of the diminution caused by that injunction in the future value of that business when resumed.

It is notorious that newpharmaceutical products used exclusively by doctors or available only onprescription take a long ammerican to become established in the market, that muchof the benefit of the monopoly granted by the patent derives from the factthat ethiicon patented product is given the opportunity of becoming establishedand this benefit continues to be reaped after the patent has expired.

The test is whether the new use lies in the track of the old use.

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