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

Reputational Damage

The Defendant argued that an injunction would cause it reputational damage which is difficult to repair and unquantifiable in damages. This was based on the evidence of Mr Charles Reynolds, who said that if an injunction was wrongly granted, it would tarnish the Defendant’s reputation for providing products which are safe and of high quality. He also thought that the market would not understand the nuances of interim relief and would assume that the Seplou Sheath is an infringing product, particularly as it is already on the market. As a result, the product would be tainted too.

Against this, Mr Cox gave evidence, based on Mr McQuilkin’s experience, that surgeons do not form an adverse view of companies who are required to withdraw products for patent reasons. The NHS procurement bodies also understand patent litigation. He also said that the Defendant would not suffer any damage to its reputation since it is only the distributor of the product and can make that clear to the NHS Supply Chain and private hospitals alike.

If it had been necessary to decide this point, I would have preferred the evidence of the Claimant and rejected the suggestion that an injunction would cause the Defendant reputational damage. As I have already said above, the NHS is a sophisticated purchaser. It is likely to understand the nuances of interim relief, including that it does not involve a finding of infringement. An injunction would not taint the reputation of the Defendant or the Seplou Sheath so as to lead to unquantifiable damage.