Court of Appeal upholds a decision that a pharmaceutical company's undertaking as to damages, given in exchange for an interlocutory injunction, should not be extended to compensate related entities not party to the proceedings, on the grounds that the evidence provided was insufficient to justify such an extension; the undertaking was intended to mitigate potential losses suffered by the defendant due to the injunction, should the patent in question ultimately be deemed invalid; and the undertaking should be assessed at the time of the injunction hearing and should not be altered post-judgment without sufficient justification.
Court of Appeal - Supreme Court of Judicature Act (Ireland) 1877 - Order 50, rule 6(1) and (2) RSC - Directive 2004/48/EC - undertaking as to damages - whether should extend to cover entities not party to proceedings but could suffer losses - appellant part of large pharmaceutical group - owns apixaban patent - respondent is biopharmaceutical company - appellant instituted proceedings to prevent respondent from revoking patent and certificate - November 2022 - four weeks' notice given of launch of generic product - 2nd December, 2022 - motion issued - 2nd and 3rd February, 2023 - application heard - 17th February, 2023 - judgment delivered - injunction granted on terms sought - 24th February, 2023 - draft order - would have extended undertaking - 1st March, 2023 - alternative order proposed - 20th March, 2023 - further revised version - 23rd March, 2023 - finalisation of order - 24th April, 2023 - appeal heard - 29th June, 2023 - judgment delivered - injunction upheld - undertaking as to damages did not feature - 21st and 26th June, 2023 - application in relation to scope of injunction heard - 28th July, 2023 - Barrett J. perfected order - loss to cover other entities - order appealed - Barrett J. heard invalidity action - 8th December, 2023 - underlying patent invalid - 12th and 13th March, 2024 - application for injunction pending determination of appeal will be heard - 13th May, 2024 - substantive appeal listed for four days - 30th January, 2024 - appeal heard - judgment reserved - Supreme Court of Judicature Act (Ireland) 1877 - Order 50, rules 6(1) and (2) RSC - Directive 2004/48/EC - complicated structure of company, injunction sought to include every possible defendant - 24th April, 2023 - appeal heard - 29th June, 2023 - injunction granted - 28th July, 2023 - order granted - 3rd November, 2023 - notice of appeal - 8th December, 2023 - revocation proceedings heard - 30th January, 2024 - undertaking as to damages hearing heard - judgment reserved - extended undertaking originally granted - stated additional evidence supporting injunction was granted - Directive 2004/48/EC - intellectual property rights - timing - can't grant injunction after decision - issue of scope of damages of critical importance - should not have discussed scope of damages after granting injunction - insufficient evidence relating to nature of loss - can't cover loss not sustained by Teva Ireland - loss has to be directly sustained - some information witheld on confidentiality grounds - no merit to argument - not enough evidence - confidentiality argued but it's ultimately the choice of the moving party to withold information - form of perfected order inappropriate - shouldn't have been allowed to file new affidavit either - EU law issue witheld - successful in appeal so appellant should be successful in costs - submissions allowed in respect of same.
interlocutory injunction, undertaking as to damages, Court of Appeal, pharmaceutical company, patent, Supplementary Protection Certificate (SPC), generic product, direct loss, indirect loss, related entities, evidence, balance of convenience, adequacy of damages, EU law, Directive 2004/48/EC, infringement, revocation proceedings.