Can There Be An Interim Injunction Before A Patent Is Granted?

A patentee can bring an action for infringement only once the patent has been granted. The claim need not be restricted to acts committed after grant. It can extend to acts which were committed before the grant but after the date of publication of the patent application. But UK law is clear that no action for infringement can actually be initiated until the patent has been granted. In any infringement action, the patentee would normally seek an injunction as well as damages or other financial relief, all of which are provided for in the legislation.

A question arose in the recent case of Novartis v Teva and others ¹ as to whether a patentee can get an interim injunction before grant of the patent, even though he cannot start an infringement action as such. It is notable that no-one has tried to do this in all the years since the legislation made pre-grant infringements actionable - this was by s.69(2) of the Patents Act 1977; and a similar provision had existed