Navigating Remedies in English Patent Litigation: Insights from Recent Court Decisions

For the past decade, English courts have generally ruled against patentees in infringement disputes. In 2017, however, the trend reversed, with a higher proportion of patents upheld as valid.

Concurrently, the judiciary has refined its approach to remedies, moving beyond the traditional “no‑infringement” order toward more nuanced solutions that consider both public interest and the patentee’s commercial reality.

Key recent judgments illustrate this shift. In Regeneron v Kymab, the Court of Appeal upheld the validity and infringement of Regeneron’s patents but granted a stay of the injunction while Kymab sought permission to appeal to the Supreme Court. Kymab, which was collaborating on antibody development with the Bill & Melinda Gates Foundation, argued that the stay was necessary to avoid disrupting projects aimed at unmet medical needs.

Regeneron counter‑ed that, under the English regulatory‑use exemption, Kymab could continue pre‑clinical and clinical trials without infringing. The court accepted that the potential harm to Kymab and the disruption of its collaborations were “powerful overarching factors” in balancing justice. Consequently, the injunction was stayed on the condition that Kymab would not commercialise certain products after patent expiry and that Regeneron could seek an injunction to prevent any commercial advantage gained from the stay.

In Edwards Lifesciences v Boston Scientific, HHJ Hacon initially found a patent valid and infringed and granted an injunction that would have limited use of Edwards’ heart‑valve devices. Because both parties appealed, the injunction was stayed pending appeal. The Court of Appeal remitted the case to the High Court to decide the form of the order.

Arnold J, hearing the remitted case, noted the uncertainty surrounding the time required for clinicians to retrain on non‑infringing valves. He therefore stayed the injunction for twelve months, allowing Edwards to apply for an extension. After the stay, the injunction was qualified: Edwards’ valves could continue to be used for patients with no alternative, provided clinicians signed a declaration. Boston Scientific was granted leave to terminate the qualification if a non‑infringing valve became available.

Financial remedies for future infringement remain unsettled, mirroring the debate in GSK v Wyeth and awaiting a decision on whether Edwards should pay for past infringements.

These cases demonstrate the courts’ careful weighing of the patentee’s rights against public benefit and the commercial realities of potential infringers. While the “no‑infringement” order remains the default remedy, recent judgments suggest a move toward more balanced, fact‑specific solutions.

Looking ahead, the Supreme Court’s pending decision in Warner‑Lambert v Actavis could clarify the appropriate remedy for cross‑label infringement of second‑use medical patents.