Smithkline Beecham Plc v Apotex Europe Ltd (No. 3)
| Jurisdiction | England & Wales |
| Judgment Date | 26 July 2005 |
| Date | 26 July 2005 |
| Court | Chancery Division (Patents Court) |
CHANCERY DIVISION
Before Mr Justice Lewison.
Injunction - interim - cross-undertakings to third parties on grant of injunctions
BEFORE March 2005, it was not implicit in a standard application for an interim injunction, other than a freezing or search order, that the applicant had to be taken to have offered a cross-undertaking in favour of third parties who were not defendants to the proceedings.
Mr Justice Lewison so held in the Chancery Division when, inter alia:
(i) dismissing an application by the defendants, Apotex Europe Ltd, Neolab Ltd and Waymade Healthcare plc, to join Apotex Inc and Apotex Pharmachem Inc, Canadian companies, as parties to an action commenced by the claimants, Smithkline Beecham plc, Glaxosmithkline UK Ltd and Glaxo Group Ltd, alleging infringement of their patented process; (ii) dismissing an application made under the slip rule, rule 40.12(1) of the Civil Procedure Rules, by the defendants to amend the claimants'cross-undertaking in damages, embodied in two previous orders for interim injunctions made against the defendants; (iii) striking out, under rule 3.4, some parts of points of claim issued by the defendants seeking the enforcement of the cross-undertaking, or giving summary judgment under Part 24; and (iv) declining to strike out other parts of the points of claim.
The claimants, members of the Glaxosmithkline Group, owned the patent for producing the key ingredient used in the manufacture of Seroxat, a popular anti-depressant.
The defendants, each of which was involved in the manufacture, importation or distribution of pharmaceutical products, informed Glaxosmithkline of their joint intention to launch a product containing the ingredient in the United Kingdom. The ingredient in the proposed product was manufactured and supplied in Canada by the Canadian companies.
After the defendants had commenced proceedings against Glaxosmithkline for the revocation of their patent, Glaxosmithkline issued counter-proceedings alleging infringement of its patented process. Neither of the Canadian companies was a claimant in the revocation proceedings or a formal defendant in the infringement proceedings.
On Glaxosmithkline's application, Mr Justice Jacob granted an interim injunction restraining the defendants from disposing of any pharmaceutical product containing the ingredient and ordered...
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