STOP in the name of the law - interlocutory injunctions

The recent legal wrangling between Apple and Samsung in relation to Apple's application for an interlocutory injunction barring the import and sale of Samsung's Galaxy Tab 10.1 into Australia demonstrates the difficulties that can arise in assessing whether an applicant for an interlocutory injunction has made out a prima facie case and whether the balance of convenience and justice favour the granting of the injunction.

An injunction is a "coercive" remedy granted by the Court to an applicant ordering another party to do or not to do a particular action. In patent litigation, the granting of a final injunction preventing a party from continuing or commencing infringing conduct is usually the primary concern of the patentee. A secondary concern is then compensation for any infringing conduct that may have already occurred. While a final injunction can only take effect once there has been a final determination of the case on its merits there is also the question of remedies that might be available to the patentee in the intervening time. In these circumstances, the patentee may make an application for an interlocutory injunction to prevent on an interim basis the conduct that is being alleged to infringe.

Under Australian law, the Court looks to whether an applicant for an interlocutory injunction has first made out a prima facie case and then further assesses whether the balance of convenience and justice favour the granting of the injunction. Notably, the strength of the prima facie case may also be a factor when assessing the balance of convenience. In...