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American Cyanamid_full Case

American Cyanamid_full Case

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american cyanamid case
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Published by: thinkkim on Aug 01, 2013
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FOR EDUCATIONAL USE ONLY*396 American Cyanamid Co. Appellants v. Ethicon Ltd. RespondentsHouse of LordsHLLord Diplock, Viscount Dilhorne, Lord Cross of Chelsea, Lord Salmon and LordEdmund-Davies1974 Nov. 12, 13, 14; 1975 Feb. 5Injunction--Interlocutory--Jurisdiction to grant--Principles on which interlocutoryinjunction to be granted--No need to be satisfied that permanent injunction probable attrial--Protection of parties--Balance of convenience-- Criteria--Rule identical in patentcasesThe plaintiffs, an American company, owned a patent covering certain sterile absorbablesurgical sutures. The defendants, also an American company, manufactured in the UnitedStates and were about to launch on the British market a suture which the plaintiffsclaimed infringed their patent. The defendants contested its validity on divers groundsand also contended that it did not cover their product. In an action for an injunction the plaintiffs applied for an interlocutory injunction which was granted by the judge at firstinstance with the usual undertaking in damages by the plaintiffs. The Court of Appealreversed his decision on the ground that no prima facie case of infringement had beenmade out. On the plaintiffs' appeal:Held, allowing the appeal,(1) that in all cases, including patent cases, the court must determine the matter on a balance of convenience, there being no rule that it could not do so unless first satisfied
that, if the case went to trial on no other evidence than that available at the hearing of theapplication, the plaintiff would be entitled to a permanent injunction in the terms of theinterlocutory injunction sought; where there was a doubt as to the parties' respectiveremedies in damages being adequate to compensate them for loss occasioned by anyrestraint imposed on them, it would be prudent to preserve the status quo (post, pp. 406C-F, 407G, 408F).(2) That in the present case there was no ground for interfering with the judge'sassessment of the balance of convenience or his exercise of discretion and the injunctionshould be granted accordingly (post, p. 410C-E).Hubbard v. Vosper [1972] 2 Q.B. 84,C.A. considered.Decision of the Court of Appeal [1974] F.S.R. 312 reversed.The following cases are referred to in their Lordships' opinions:Donmar Productions Ltd. v. Bart (Note) [1967] 1 W.L.R. 740; [1967] 2 All E.R. 338.Harman Pictures N.V. v. Osborne [1967] 1 W.L.R. 723; [1967] 2 All E.R. 324.Hubbard v. Vosper [1972] 2 Q.B. 84; [1972] 2 W.L.R. 389; [1972] 1 All E.R. 1023, C.A.Jones v. Pacaya Rubber and Produce Co. Ltd. [1911] 1 K.B. 455, C.A.Preston v. Luck (1884) 27 Ch.D. 497, C.A.*397Smith v. Grigg Ltd. [1924] 1 K.B. 655, C.A.Wakefield v. Duke of Buccleugh (1865) 12 L.T. 628.The following additional cases were cited in argument:Acetylene Illuminating Co. Ltd. v. United Alkali Co. Ltd. (1904) 22 R.P.C. 145, H.L.(E.).British Thomson-Houston Co. Ltd. v. Corona Lamp Works Ltd. (1921) 39 R.P.C. 49,H.L.(E.).Carroll v. Tomado Ltd. [1971] R.P.C. 401.Challender v. Royle (1887) 36 Ch.D. 425, C.A.Elwes v. Payne (1879) 12 Ch.D. 468, C.A.Evans Marshall & Co. Ltd. v. Bertola S.A. [1973] 1 W.L.R. 349; [1973] 1 All E.R. 992,C.A.Hatmaker v. Joseph Nathan & Co. Ltd. (1919) 36 R.P.C. 231, H.L.(E.).May & Baker Ltd. and Ciba Ltd.'s Letters Patent, In re (1948) 65 R.P.C. 255; 66 R.P.C.
8, C.A.; sub nom. May & Baker Ltd. v. Boots Pure Drug Co. Ltd.;(1950) 67 R.P.C. 23,H.L.(E.).Mitchell v. Henry (1880) 15 Ch.D. 181, C.A.Mogul Steamship Co. v. M'Gregor. Gow & Co. (1885) 15 Q.B.D. 476. Natural Colour Kinematograph Co. Ltd. v. Bioschemes Ltd. (1915) 32 R.P.C. 256, H.L.(E.). Newman v. British & International Proprietaries Ltd. [1962] R.P.C. 90, C.A. No-Fume Ltd. v. Frank Pitchford & Co. Ltd. (1935) 52 R.P.C. 231, C.A.R.C.A. Photophone Ltd. v. Gaumont-British Picture Corporation Ltd. (1935) 53 R.P.C.167, C.A.Wrotham Park Estate Co. Ltd. v. Parkside Homes Ltd. [1974] 1 W.L.R. 798; [1974] 2 AllE.R. 321.Zaidener v. Barrisdale Engineers Ltd. [1968] R.P.C. 488, C.A.APPEAL from the Court of Appeal.This was an appeal from an order of the Court of Appeal (Russell and Stephenson L.JJ.and Foster J.) dated February 5, 1974, whereby the judgment of Graham J. dated July 30,1973, was reversed and his order discharged on a motion for an interlocutory injunctionin an action for infringement of letters patent No. 1,043,518 in which the respondents,Ethicon Ltd., were defendants and the appellants. American Cyanamid Co., were plaintiffs. The respondents counterclaimed for revocation of the patent. Graham J.granted the appellants' application for an interlocutory injunction until the trial of theaction and counterclaim, but the Court of Appeal unanimously held that, on the presentevidence the claims of the patent were not likely to be construed so as to cover therespondents' product, and that a prima facie case of infringement of the patent hadtherefore not been established. The Court of Appeal therefore discharged theinterlocutory injunction ordered by Graham J. The court refrained from expressing anyview on any of the other issues raised.The facts stated in the opinion of Lord Diplock were as follows: This interlocutory appealconcerned a patent for the use as absorbable surgical sutures of filaments made of a particular kind of chain polymer known as 'a poly-hydroxyacetic ester' ('PHAE'). These

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