Interlocutory injunctions are rarely granted in patent cases. The "irreparable harm" branch of the RJR –MacDonald Inc. v. Canada (Attorney General), [1994] 1 SCR 311 test is often difficult to satisfy as monetary recovery will fully compensate the rights-holder.
Despite this rarity, Justice Déziel of the Superior Court of Québec recently granted an interlocutory injunction in a patent case. Did he conclude that infringement is, in and of itself, irreparable harm? Does the Québec Court apply a lower standard for interlocutory injunctions in patent cases? Probably not. A close read of Justice Déziel's reasons does not reveal a finding that patent infringement is, in and of itself, irreparable harm.
In this case, Thermolec alleged that Stelpro infringed a patent relating to an air heating system. Thermolec sought an interlocutory injunction restraining Stelpro from selling the allegedly infringing products until trial.
Justice Déziel first considered expert evidence on the issue of infringement. He explained that the Court is not tasked with assessing the merits at the interlocutory stage, and concluded that Thermolec appears to have a right that has been infringed.
Justice Déziel then turned to the issue of irreparable prejudice. He concluded that, unless an interlocutory injunction is granted, Thermolec will (1) suffer a loss of goodwill, (2) not enjoy the monopoly granted by the Patent Act, and (3) risk losing distributors who sell the patented products as well as Thermolec's other products.
The factors Justice Déziel considered are similar to those outlined by the SCC in RJR MacDonald:
"Irreparable" refers to the nature of the harm suffered rather than its magnitude. It is harm which either cannot be quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages from the other. Examples of the former include instances where one party will be put out of business by the court's decision [or] where one party will suffer permanent market loss or irrevocable damage to its business reputation.
Justice Déziel also noted that the balance of convenience favours Thermolec, since the sale of the patented products represents 30% of its business, in contrast to only 5% of Stelpro's.
While Justice Déziel does not cite the evidence he relied upon regarding irreparable prejudice, it is clear that evidence on this issue was adduced: the Court outlines the nature of Thermolec's business, the number of its employees, and what proportion of its sales the patented technology comprises.
Justice Déziel's decision appears, at first glance, to apply a lower standard to interlocutory injunctions in patent cases. However, a closer look at the reasons shows that he considered the very same factors outlined by the SCC in R.J.R. MacDonald to conclude that a interlocutory injunction must issue.
Citation to case: Thermolec ltée c. Stelpro Design Inc., 2018 QCCS 901
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