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In American Cyanamid Co v Ethicom Ltd [] AC , the court developed a set of guidelines to establish whether an applicant’s case merited the granting of . Where an interlocutory injunction is sought, the balance of convenience will be the overriding consideration. P applied for an interlocutory injunction to prevent D . Parliamentary Archives,HL/PO/JU/4/3/ HOUSE OF LORDS. AMERICAN CYANAMID. N LIMITED. Lord DiplockViscount DilhorneLord Cross of.

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The following additional cases were cited in argument: Cyanamid’s contention is that at the date of publication of the patent thosewords were used as a term of art in the chemistry of polymerisation not cyansmid the narrower meaning of a homopolymer of which the units in the chain,apart from the end stabilisers, consisted solely of glycolide radicals but alsoin the broader meaning of a copolymer of which up to 15 per cent, of theunits in the chain would be lactide radicals; and that what was said in thebody of the patent made it clear that in the claim the words were used inthis americna meaning.

The application can be and should be refused without the court needing to form any prima facie view as to the respective rights of the parties. As to the contents of a specification, see Terrell on the Law of Patents, p. The general rule that one must establish a probability, or a strong probability, is not correct. In the alternative, as commonly happens where the contest is between a narrower and a wider meaning in a patent specification, they a,erican the validity of the patent, if it bears the wider meaning, on the grounds of inutility, insufficiency, unfair basis and false suggestion.

The main issue in this appeal is whether PHAE, construed in the patent in suit, covers more than the homopolymer. They were made from animal tissues popularly known as catgut. He therefore felt entitled to consider the balance of convenience. The balance of convenience is primarily a matter for the judge of first instance.

American Cyanamid principles

Lacking in this experience, an Appellate Court should behesitant to over-rule his exercise of his discretion, unless they are satisfied thathe has gone wrong in law. Glycolide is the radical of Glycolic ethicom, which is another namefor hydroxyacetic acid.

Here, if anything, it means that the plaintiff has more than a 50 per cent. Paterson for the respondent company. Key Phrases are not available yet. The plaintiffs must be able to show that the strength of their case is such that in the circumstances there should ethiocn an interlocutory injunction. Save americsn the simplest cases, the decision to grant or to refuse an interlocutory injunction will cause to whichever party is unsuccessful on the application some disadvantages which his ultimate success at the trial may.


As patent judge he has unrivalled experience of pharmaceutical patents and the way in which the pharmaceutical industry is carried on. Get 2 points on providing a valid reason for the chanamid change. Their Lordships took time for consideration.

The grant of an interlocutory injunction is a remedy that is both temporary and discretionary. There are four points of defence: Privy Councilethidon Sep Accordingly, the Judge found that the commercial expectations of the parties were set by the package of rights and obligations in the LA.

In his opinion it lay infavour of maintaining the status quo until the trial of the action. In the present case any claim would have to be backed up by a description in the specification intimating how other groups and units would affect the properties of the suture. The suggested distinction between what the plaintiff mustestablish as respects his right and what he must show as respects its violationdid not long survive.

Osborne [] 1 W. If, on the other hand, damages would not provide an adequate remedy forthe plaintiff in the event of his succeeding at the trial, the court should thenconsider whether, on the contrary hypothesis that the defendant were tosucceed at the trial in establishing his right to do that which was sought to beenjoined, he would be adequately compensated under the plaintiff’s rthicon as to damages for the loss he would have sustained by being preventedfrom doing so between the time of the application and the time of the trial.

In the present case it could be serious for the defendants to have cyanqmid put all their work into cold storage. If an interlocutory injunction is granted and the defendants succeed at the trial, the plaintiffs will have to pay them such damages as are attributable to the injunction. 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 the application, the plaintiff would be entitled to a permanent injunction in the terms of the interlocutory injunction sought; where there was a doubt as to the parties’ respective remedies in damages being adequate to compensate them for loss occasioned by any restraint imposed on them, it would be prudent americaan preserve the status quo post, pp.

They allowed the appeal and discharged the judge’s order. In each case one must ask why damages are not a sufficient remedy. Ameridan interlocutory appeal concerned 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”.


It is undesirable to adopt any other amerixan. If there is simply a dispute between traders as to a monopoly there will be no irreparable damage. These objections are really the obverse of their argument in favour of the narrower construction. He is not entitled to an interlocutory injunction just because he has a strong case. The Evans Marshall case [] 1 W. For the purpose of deciding whether the plaintiffs have established a prima facie case the House must decide whether on the evidence the construction for which they contend is the one.

Ethicon appealed to the Court of Appeal. Theyallowed the appeal and discharged the judge’s order. These will vary from case to case. When the court is considering whether or not to grant an interlocutory injunction the right approach is to ask first whether or not there is a serious question to be tried.

American Cyanamid principles | Practical Law

Glycolide was the radical cyanamic glycolic acid, which was another name for hydroxyacetic acid. It erred in holding that the appellants had not established that prima facie the patent in suit would be infringed by the marketing of the respondents’ suture.

Upload brief to use the new AI search. Cyannamid would be most exceptional for your Lordships to giveleave to appeal to this House in a ycanamid which turned upon where the balance 3 of convenience lay.

The court no doubt must be satisfied that the claim is not frivolous or vexatious, in other words, that there is a serious question to be tried. Court of Appeal in Northern Ireland22 Nov They were saying ” If we” had to give judgment in the action now without any further evidence we” should hold that Cyanamid had not satisfied the onus of proving that their” patent would be infringed by Ethicon’s selling sutures made of XLG.

I have had the advantage of reading the speech of my noble and learnedfriend, Lord Diplock. He considered at p. The balance of convenience is against the granting of an interlocutory injunction. Voluminous affidavits and exhibits were filed on behalf of each party. Leave to appeal from that cyznamid was granted by the House of Lords.