Les Laboratoires Servier & Anor v KRKA Polska SP Zo.o & Anor

On an interim patent injunction, the court must first identify a serious question to be tried, without conducting a mini-trial on conflicting affidavit evidence. It must then assess damages and the balance of convenience, including the risk of irreparable or unquantifiable harm and, where appropriate, preservation of the status quo. Relative strength may be considered only where the evidence is substantially undisputed and one case is plainly much stronger. Summary judgment is appropriate only where the respondent has no real prospect of success at trial. An interim injunction was granted because infringement and validity raised serious issues, while the likely commercial damage to the patentee substantially outweighed the defendant’s loss.

The claimants sought an interim injunction under a patent concerning the alpha crystalline form of perindopril. They alleged that the defendants intended to import, offer and dispose of a generic perindopril product in the United Kingdom.

The defendants applied for summary judgment on the basis that the patent was clearly invalid for lack of novelty or obviousness, relying principally on an earlier patent and the prior sale of Coversyl tablets. The court had to decide whether there was a serious issue on infringement and validity, whether summary judgment was justified, and where the balance of convenience lay pending trial.

1. Applying American Cyanamid v Ethicon [1975] A.C. 396, the court had to identify a serious question to be tried, then assess damages and the balance of convenience. Conflicting affidavit evidence should not be resolved as at trial.
2. Relative strength could be considered only where there was no credible evidential dispute and one case was disproportionately stronger. The court could assess the prima facie plausibility of affidavit evidence: Eng Mee Yong v Letchumanan [1980] A.C. 331; Re Lord Cable [1976] 3 All ER 417.
3. Servier established a serious issue on infringement. The evidence concerning anticipation and obviousness over the earlier patent, and whether the prior sale of Coversyl tablets was enabling, was materially disputed. KRKA therefore failed to show that Servier had no real prospect of defending the patent.
4. Applying Celador Productions v Melville [2004] EWHC 2362, summary judgment was inappropriate where the case depended on disputed expert and experimental evidence.
5. The balance of convenience favoured Servier. A generic launch risked rapid market displacement, price erosion and continuing losses that would be difficult to quantify or reverse. That risk substantially outweighed KRKA’s loss. The injunction also preserved the status quo pending trial.
6. The interim injunction application was granted and KRKA’s summary judgment application was refused.