IP-2024-000024 - [2024] EWHC 951 (IPEC)

Lost sales of convoyed goods

The Defendant argued that an injunction would cause it to lose out on the sale of ureteroscopes, as convoyed goods. As explained above, a ureteroscope is inserted into a UAS and used to view and break up the kidney stone. Mr George Reynolds gave evidence that if the Defendant was injuncted, there was a risk that the Claimant (via its distributor) would start to “bundle” its ClearPetra UAS with the ureteroscope that it sells (called Urofino) but the Defendant would be denied the opportunity to do the same thing with the ureteroscope that it sells (called Pusen). He also said that bundling would enable the Claimant (via its distributor) to undercut the equivalent combined price of a ClearPetra Sheath and the Pusen ureteroscope, with the result that the Defendant would lose sales of the Pusen. He estimated that lost sales would be in the region of 4800 Pusen units a year, and that it would be difficult to restore market share if it transpired that the injunction had been wrongly granted.

The Claimant criticised this argument for the following reasons. First, there is no evidence that the market is currently based on bundling, even though ureteroscopes and UASs have been on the market for some time. To the contrary, the evidence from Mr Cox was that, based on Mr McQuilkin’s experience, NHS hospitals buy medial products separately as they work through their purchasing lists. Moreover, neither party has sold their UASs to date as part of a bundle with other products. Second, the figures presented by Mr Reynolds simply do not stack up. This is because, on its own figures, the Defendant is only likely to sell approximately 420 Seplou Sheaths in the next 12 months. So even assuming that every sale of a Seplou Sheath also resulted in the sale of a Pusen, if the Defendant was injuncted it would only lose out on sales of approximately 420 ureteroscopes and not the thousands being alleged.

In my judgment, these criticisms are well founded. I would have rejected the Defendant’s argument that it is at risk of unquantifiable damage from lost sales of convoyed goods.