Until recently, the received wisdom in intellectual property (IP) circles was that there was little chance of the courts granting an interim injunction pending trial in a patent infringement case. A combination of the Civil Procedure Rules (with their encouragement to negotiate rather than litigate), ‘speedy trial’ orders (by which genuinely urgent cases could jump the queue and be brought to trial in a few months), and the ‘case hardening’ of judges to the arguments usually put forward to justify interim injunctions, meant few patentees sought, let alone obtained, interim injunctive relief.
All that has now changed. In a series of cases beginning with SKB v Generics [2001], the courts have made it clear that if a generic pharmaceuticals company fails to ‘clear the way’ for a product launch by either seeking a declaration that it does not infringe a blocking patent, or applying to revoke it, there is a serious risk of an interim injunction being granted, thereby preventing the launch and throwing the generic’s plans into disarray.
