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Patents and Injunctions

Written by Michael Coyle on 23 October 2008

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Patent litigation and Injunctions

If you have a patent and a third party appears to be infringing then you will need to write to him threatening legal action if he des not stop. If he refuses it will be necessary to commence legal proceedings.

Usually it will only be possible to stop infringement after the case has reached trial (which can take some time). This means the infringement will continue. However an injunction may be possible if (amongst other things) damages at trial cannot compensate for the infringement. In practice this is limited to the pharmaceuticals sector. An interim injunction must be sought without delay and the claimant must give a cross-undertaking as to the damages which will be payable to the defendant.

How to apply for an injunction. If you are applying with notice you will need to make the application to a judge in the High Court by completing an appliciaton notice a witness statement and draft order. Filing copies of the application notice, evidence and draft order at court, with a court fee of 75 pounds. Once you have the sealed order you will then serve the application notice, evidence and draft order on the Respondent providing at least three clear days before the hearing. The Respondent may file and serve evidence in opposition and a hearing date will be set down.

An injunction is not something a court will easily grant. You must be very sure as to the merits of your case, and be prepared to provide details of your finances as security as you will be expected to give undertakings on damages in the event that you lose the case!

Its a serious step and legal advice is a must.

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