Charlotte May QC and Henry Ward successfully appeared for the defendant (“Teva”) in a second application brought by the claimants (“Neurim”) for interim injunctive relief, the first application (also successfully defended by Charlotte May QC) having been rejected by Mellor J on 14 April 2022. The underlying claim related to infringement of Neurim’s patent for the use of melatonin to treat insomnia.
The second application was brought by Neurim because, in the intervening time, the Court of Appeal had upheld the judgment of Marcus Smith J finding the patent to be valid and infringed, injuncting Mylan from selling its generic melatonin product and ordering it to retrieve its product from its customers. Neurim, therefore, sought an order restraining Teva on similar terms in relation to its generic product until expiry of the patent on 12 August 2022.
Mellor J rejected the application and ordered Neurim to pay costs on the indemnity basis. The Judge was unable to form a view on the merits of the party’s respective cases in the underlying proceedings. Applying the American Cyanamid guidelines, as with Neurim’s first application, if the injunction was refused the loss Neurim would suffer pre-expiry and post-expiry was capable of being ascertained with a high degree of certainty. Conversely, and as with the first application, damages would not be an adequate remedy for the loss suffered by Teva pre-expiry or post-expiry if it was injuncted. Similarly, Teva had been on the market for 8 months, so preservation of the status quo favoured rejecting the application.