Interlocutory injunction applications in Australia

In Australia, patentees can apply to the court for an interlocutory injunction to prevent a competitor entering the market before the court finally determines whether the patentee's rights would be infringed. An interlocutory injunction will be awarded if (a) the patentee has a prima facie infringement case and (b) the balance of convenience favours the injunction. In practice, unless the infringement case is particularly weak, or the invalidity case almost irresistible, a prima facie case will invariably be established. As a consequence, most interlocutory injunction applications are decided on the balance of convenience. Assessing the balance of convenience entails a complex task of weighing all the surrounding factors to determine whether granting the interlocutory injunction is in the interests of justice. While the relevant circumstances are specific to each case, a number of common factors arise in most interlocutory injunction applications, such as the extent and nature of the parties' respective potential loss, the patentee's prospects of establishing infringement and the respondent's awareness of the patentee's rights before it sought to enter the market. When contesting an interlocutory injunction application, a party's litigation strategy must pay close regard to these factors to maximise their prospects of success. A review of recent patent interlocutory injunction applications shows that a high proportion of interlocutory injunctions are granted. This is primarily a function of the test applied by the court. It appears that a respondent must establish that there are exceptional circumstances in order to avoid the grant of an interlocutory injunction.