Post-Trial Variations To Final Injunctions And The Principle Of Finality: Fiberweb v Geofabrics [2021] EWHC 1996 (Pat)

• Published date: 30 July 2021
• Subject Matter: Intellectual Property, Litigation, Mediation & Arbitration, Patent, Trials & Appeals & Compensation
• Law Firm: Marks & Clerk
• Author: Mr Jonathan Solomon and Trevor Crosse BSc

Overview

In almost all cases, the UK court will issue a final injunction following a finding of patent validity and infringement. Normally such final injunctions are drafted in general terms, to restrain the infringing party from any further infringement of the patent in suit. Injunctions are not normally linked to a particular infringing act or product.

This case considered the extent to which courts can later vary the terms of such final injunctions. Sir Anthony Mann allowed Fiberweb's application to exclude a new design-around product (which was not considered at trial and is subject to separate non-infringement proceedings) from an injunction that restrained Fiberweb from infringing Geofabric's patent. He held that such an application was analogous to similar applications made at the end of a trial to exclude modified and allegedly non-infringing variations from the injunction (see Illumina and Unilever below), and noted that the relevant considerations are similar to those for interim injunctive relief. In light of Geofabrics' unwillingness to provide a cross-undertaking in damages to Fiberweb, he found that the status quo required a variation to the injunction.

Facts

In March 2020 Mr David Stone, sitting as a Deputy High Court Judge, found Geofabrics' Patent to be valid and infringed by Fiberweb's product, Hydrotex 2. The patent relates to trackbed liners for railways, which prevent erosion caused by the repeated and rapid application of pressure from the passage of trains causing water, clay, and silt particles to be squeezed out of the trackbed. Such liners work by being permeable to water, but not solid particles, under the pressure of a passing train. For the present purposes, the relevant integer of the patent was the requirement that the liner was impermeable to water under normal conditions (i.e. in the absence of a train). Hydrotex 2 was found to fulfil this condition and thus to infringe.

At the form of order hearing in April 2020, Mr Stone awarded Geofabrics a final injunction in the standard form, restraining Fiberweb from infringing Geofabrics' patent (the 2020 Injunction). The parties agreed to stay the 2020 injunction pending appeal.

On 3 April 2020, between judgment and Mr Stone's order granting the injunction, Fiberweb commenced proceedings for a declaration of non-infringement (DNI) in respect of a new product, Hydrotex 4, which Fiberweb contends has greater permeability than Hydrotex 2, such that it avoids falling within the scope...