The High Court has confirmed that in cross-undertakings as to damages, an injured party is not entitled to an account of profits.
By way of background, when an English court grants an interim injunction, the patentee must give a cross-undertaking as to damages to ensure any party affected by the injunction is compensated if it later turns out the injunction was wrongly granted. Pursuant to the cross-undertaking, a defendant is entitled to seek recovery of any losses caused by the injunction.
In the case at hand, Sandoz AG & Ors v Bayer Intellectual Property GmbH & Ors [2025] EWHC 2201 (Pat), Bayer obtained an interim injunction against several parties intending to launch a once-daily rivaroxaban product in the UK. In granting the injunction, the Court order included a cross-undertaking by Bayer to compensate the defendants for any "loss" caused by the injunction.
After the High Court found, and the Court of Appeal agreed, that Bayer's patent was invalid, Sandoz commenced a damages inquiry. As an alternative to claiming compensation for its losses (i.e. damages), Sandoz sought an account of the profits made by Bayer during the term of the interim injunction.
Bayer applied to strike the account of profits plea. Michael Tappin KC, sitting as a Deputy Judge of the High Court, found in favour of Bayer and struck out the account of profits claim. In ruling for Bayer, the Deputy Judge construed the wording of the cross-undertaking and applied well-established legal principles. Although he noted some contrary obiter statements made in Les Laboratoires Servier v Apotex [2008]EWHC 2347, the Deputy Judge confirmed the authorities on this point were consistent and agreed that the plea for an account of profits should be struck for having no real prospect of success.
Sandoz AG & Ors v Bayer Intellectual Property GmbH & Ors [2025] EWHC 2201 (Pat)
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
