Michael Forrester- Business Litigation Solicitor

It was widely reported last week that LG obtained a legal injunction against Sony which subsequently banned the importation of PS3 games consoles into Europe.

Thousands of PS3 games consoles were seized by customs officials in The Netherlands, with the legal dispute centering around the ownership of Blu-Ray technology.

Applications for interim injunctions in intellectual property, and particularly patent cases, are not uncommon. Businesses seek this type of relief because a cash award is sometimes inadequate. The number of claims may increase because local courts were given authority to deal with this type of case last year.

The interim injunction in this case granted by the International Court of Justice in The Hague has received considerable publicity because of the parties involved and the large effect that an interim injunction can have on a market place.

Many hi-tech products rely on a large number of proprietary technologies, as well as standard and open source solutions. The relationship between product and technology is often difficult to understand, with patented technologies finding new uses in new fields. Obtaining and protecting a patent go hand in hand – there is little value in owning any property if steps are not taken to protect it.

Interim injunctions are often expensive and are therefore traditionally used by larger companies. However, small businesses can access the same kinds of justice by utilising a solicitor to directly request to Customs officials that goods infringing an owners’ intellectual property are impounded at the border.

However, enforcement actions are not without their risks. A classic way of fighting against an infringement claim is for the defendant to ask the courts to declare the patent invalid, for example for being no different to the prior art at the time of filing. In England and Wales the rules relating to patents are contained within the Patents Act 1977, which specifically provides the defences of invalidity of the patent and prior use of the patent by the alleged infringer amongst other more specific defences.