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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Cyananid an action for an injunction the plaintiffs applied for an interlocutory injunction which was granted by the judge at first instance with the usual undertaking in damages by the plaintiffs. In every patent action money is at stake and there is some question of substance.

In the instant appeal, however, the wthicon of thebalance of convenience, although it had been considered by Graham J. Facedwith this competition to catgut, Ethicon who supplied 80 per cent, of themarket were proposing to introduce their own artificial suture ” XLG “.

So unless the material available to the courtat the hearing of the application for an interlocutory injunction fails canamid 5 disclose that the plaintiff has any real prospect of succeeding vv his claim fora permanent injunction at the trial, the court should go on to consider whetherthe balance of convenience lies in favour of granting or refusing the inter-locutory relief that is sought. Ethicon’s first contention is that the words ” a polyhydroxyacetic ester “in the principal claim bear the narrower meaning only, viz.

Patent specifications must not be ambiguous: The present case resembles Zaidener v.

Among other submissions, counsel for the Claimant referred to an exclusion clause in the LA which provided in so far as is material: I would reiterate that, in addition to those to which I have referred, theremay be many other special factors to be taken into consideration in theparticular circumstances of individual cases.

The court no doubt must cywnamid satisfied that the claim is not frivolous or vexatious, in other words, that there is a serious question to be tried. Cyanamid contended that XLG infringed their patent, of which the principal claim was: The normal rule of English litigation is that a party gets no relief till he has gone to trial and persuaded the court that he has a right which has been infringed.


For the reasons given by my noble and learned friend, Lord Diplock,I would also allow this appeal. Ethicon appealed to the Court of Appeal. The law recognises that there are situations in which the cyaanamid in dispute has some special quality of its own, e.

If damages in the measure recoverableat common law would be adequate remedy and the defendant would be ina cyanamdi position to pay them, no interlocutory injunction should normallybe granted, however strong the plaintiff’s claim appeared to be at that stage. These are sutures ofa kind that disintegrate and are absorbed by the human body once theyhave served their purpose.

American Cyanamid principles | Practical Law

Vosper [] 2 Q. This 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”.

The court, however, expressly deprecated any attempt to fetter the discretion of the court by laying down any rules which would have the effect of limiting the flexibility of the remedy as a means of achieving the objects that I have indicated above. The chemical substance of which it americwn made was not a homopolymer but a copolymer, i. The observations of the Lords were not confined to claims for processes.

American Cyanamid principles

As to the balance of convenience, see Mitchell v. Voluminous affidavits and exhibits were filed on behalf of each party.

Pacaya Rubber and Produce Co. No sincere attempt was made to make it clear that that copolymers were included. The Court of Appeal wrongly construed the claim and specification and its decision was based on a misapprehension of the evidence.

Cyanamid contend the XLG infringes their patent, of which the principalclaim is ” A sterile article for the surgical repair or replacement of living” tissue, the article being readily absorbable by living tissue and being formed” from a polyhydroxyacetic ester.

American Cyanamid Co. v. Ethicon Ltd.

If the defendant is enjoined temporarily from doing something that he has notdone before, the only effect of the interlocutory injunction in the event of hissucceeding at the trial is to postpone the date at which he is able to embarkupon a course of action which he has not previously found cyanaid necessary toundertake ; whereas to interrupt him in the conduct of an established enter-prise would cause much greater inconvenience to him since he would haveto start again to etgicon it in the event of his succeeding at the trial.


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 ethicno could not do so unless first satisfied that, if the cyanaamid 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 ctanamid 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 to preserve the status quo post, pp.

The Evans Marshall case [] 1 W. Save in 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.

He then went on todeal briefly with the attack upon the validity of the patent and came to theconclusion that upon the evidence before him none of the grounds ofinvalidity advanced by Ethicon was likely to succeed.

The grant of an interlocutory injunction is a remedy that is both temporaryand discretionary. Paterson for the respondent company.

The Court of Appeal reversed his decision on the ground that no prima facie case of infringement had been made out. Go to Your Lordships should in my view take this opportunity of declaring thatthere is no such rule.