Janssen Inc v Abbvie Corporation, 2014 FCA 176

Janssen moved for a stay of an injunction the Federal Court issued (2014 FC 489) until the Court of Appeal determines three appeals from a finding of infringement of Canadian patent 2,365,281. [1]

The Court held that “Janssen has failed to establish unavoidable irreparable harm and, thus, is not entitled to a stay of the injunction.” [22]

Regarding legal and other expenses flowing from the injunction, the Court held that “[l]egal and other expenses without ‘abnormal, harsh consequences beyond the norm’ do not qualify as irreparable harm, as these can be quantified in damages.” [24]

Furthermore, the Court held that “the non-monetary burdens associated with complying with the injunction – training personnel, changing communications, etc. – are the sorts of administrative inconvenience that, without more, cannot support suspending the injunction” and noted that these burdens “may well be qualified in monetary terms.” [25]

The Court also rejected Janssen’s position that the injunction would irreparably harm its reputation among doctors, and noted that Janssen was free to explain the legal dispute to doctors. [26] The Court also dismissed the argument that the injunction would cause irreparable loss of market share, and noted that any such losses may be quantifiable monetarily. [27]

Finally, the Court addressed Janssen’s argument that “it is suffering and will continue to suffer irreparable harm because of ambiguities in certain terms of the injunction. [For example,]…wording in the injunction, such as the prohibition…against ‘influencing’ physicians.” [28] Janssen asserted that these ambiguities “force it to take very restrictive views of the meaning of the terms of the injunction, resulting in over-compliance.” [29]

Janssen had brought a motion before the Federal Court seeking clarification of some of the terms of the injunction, but the motion was dismissed. In light of this, Janssen argued its recourse lies with the Federal Court of Appeal. [32-33] However, the appellate Court disagreed, and held that Janssen should seek from the Federal Court a variation of the terms of the injunction. [34] The Court suggested that Janssen may be able to rely on Rule 399(2)(a) of the Federal Court Rules, whereby “the Federal Court may set aside or vary an order ‘by reason of a matter that arose…subsequent to the making of the order.’” [39] The Court went on to note that “[i]n a situation such as this, a party moving for variation of the injunction under Rule 399 would have to present specific, particularized evidence of significant, unforeseen difficulty in following its terms.” [43]

The Court went on to note that Janssen’s generalized assertions of difficulties arising from the ambiguities in the terms of the injunction do not reach the threshold of irreparable harm because these assertions are not sufficiency particularized. [44] The Court asserted that “[a]ssumptions, speculations, hypotheticals and arguable assertions, unsupported by evidence, carry no weight.” [45]

The Court characterized the harm claimed by Janssen as “the sort of inconvenience suffered by any party when it must comply with an injunction –  issues of interpretation, judgment calls and practical implementation. Undoubtedly these can create burdens, uncertainties and risks.” [54] The Court went on to hold that a “moving party seeking to suspend an injunction pending appeal must adduce evidence showing unusual or abnormal burdens, uncertainties and risks.” [55]