Case Note by David McAndrew. The Court of Appeal has found that interlocutory applications to restrain recourse to performance bonds generally fall into a special category when it comes to whether the Court should exercise its discretion to decide a question of law/construe the recourse provision. A mere assertion of reputational damage in the event of recourse will not suffice to demonstrate likelihood of irreparable harm.
Successful patentee not required to amend patent to reflect adverse findings in respect of certain claims before obtaining relief for infringement
Co-authored by Peter Heerey AM QC, Tom Cordiner and Alan Nash. Following on from his Honour’s decision reported above, JAI Products asserted that, because the only patent claims upon which Damorgold succeeded were dependent on claims that had been found invalid, it was necessary for Damorgold to amend the patent pursuant to section 105 of the Patents Act before it was entitled to an order for injunctive relief. JAI Products plainly wished to argue that the Court should exercise its discretion not to amend the patent because of culpable delay or the like.
A recent illustration of the stringency of the usual undertaking as to damages for a party who obtains an interlocutory injunction, where the injunction is later discharged and the proceeding lost.
Failure to comply with an injunction not to infringe someone’s intellectual property right is not only an infringement of that intellectual property right but also a contempt of court. The sanctions for contempt of court are many including, potentially, fines and imprisonment – even in intellectual property cases. The Full Federal Court has confirmed that imprisonment was the appropriate sanction for Mr Vladimir Vaysman’s repeated breaches of injunctions not to infringe trade mark and copyright, but reduced the sentence from 3 years to 2 years.