Smith & Nephew Plc v Convatec Technologies Inc & Ors

Smith & Nephew Plc v Convatec Technologies Inc & Ors

Permission to appeal to the Supreme Court is refused as no significant point of general public importance arises. The injunction and order for delivery up or destruction are stayed pending the Supreme Court's decision on permission to appeal or, if later, the decision of the EPO Technical Board of Appeal, given the balance of justice and potential irreparable harm to Smith & Nephew. Disclosure is ordered as offered by Smith & Nephew, not at the level sought by ConvaTec. ConvaTec is entitled to 60% of their first instance costs (after interim orders) and 86% of their appeal costs, with payment on account ordered.

Parties
Appellant: Smith & Nephew plc; Respondent/appellant and Third Parties: ConvaTec Technologies Inc; Third Party: T J Smith & Nephew Ltd; Third Party: Smith & Nephew Medical Ltd
Jurisdiction
England and Wales
Judgment Date
30 July 2015
Procedural Posture
Civil Appeal (patents) / Judgment on Form of Order After Appeal
Outcome
Permission to appeal refused; injunction and order for delivery up or destruction stayed; costs and disclosure orders made.
Legal Topics
Patent Infringement, Stay of Injunction, Disclosure, Costs, Appeal Procedure
Intellectual Property Civil Procedure Patent Infringement Stay of Injunction Disclosure Costs Appeal Procedure

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Parties

Smith & Nephew plc

Appellant

ConvaTec Technologies Inc

Respondent/appellant and Third Parties

T J Smith & Nephew Ltd

Third Party

Smith & Nephew Medical Ltd

Third Party

Procedural Posture

Civil Appeal (patents) / Judgment on Form of Order After Appeal

Legal Issues

  1. 1 Whether to grant permission to appeal to the Supreme Court
  2. 2 Whether to stay injunctive relief and order for delivery up or destruction pending further proceedings
  3. 3 Appropriate disclosure to enable election between inquiry as to damages or account of profits

Ratio Decidendi

Permission to appeal to the Supreme Court is refused as no significant point of general public importance arises. The injunction and order for delivery up or destruction are stayed pending the Supreme Court's decision on permission to appeal or, if later, the decision of the EPO Technical Board of Appeal, given the balance of justice and potential irreparable harm to Smith & Nephew. Disclosure is ordered as offered by Smith & Nephew, not at the level sought by ConvaTec. ConvaTec is entitled to 60% of their first instance costs (after interim orders) and 86% of their appeal costs, with payment on account ordered.

Court Disposition

Permission to appeal refused; injunction and order for delivery up or destruction stayed; costs and disclosure orders made.

Orders

  • Stay of injunction and order for delivery up or destruction pending Supreme Court decision on permission to appeal or, if later, EPO TBA decision, subject to Smith & Nephew's undertaking to expedite proceedings.
  • Disclosure to be provided as offered by Smith & Nephew; no further disclosure at this stage.