In patent, trade secret, and similar matters, plaintiffs will often seek a preliminary injunction to halt the sale of a competing product that they believe makes improper use of their intellectual property. Brattle economists help clients to determine if the competitive harm can be addressed through a damages award or whether irreparable harm has been suffered by a patent owner due to the entry of a potentially infringing product. Following the e-Bay decision, we have also been involved in a number of cases in which we prepared analyses of irreparable harm pursuant to a party’s request for a permanent injunction.
Brattle economists have worked on a number of cases in which branded drugs have been faced with patent challenges by generic companies under the Hatch-Waxman Act. In many of these cases, the generic company has sought to enter the market “at risk”—i.e., prior to resolution of the patent suit—and the branded drug company has responded with a request for a preliminary injunction. In these injunction cases, we have been asked to evaluate whether the branded drug company would suffer irreparable harm due to “at risk” generic entry. We have addressed this question by analyzing the likely impact of such entry on the branded drug company’s sales, research incentives, marketing efforts, employment, and manufacturing facilities. We have also investigated the impact of such entry on the branded drug’s formulary status and the goodwill of its customers.
Having developed an innovative surgical procedure for use in women’s healthcare, as well as a new surgical tool for performing that procedure, our client sought to enjoin a rival company from selling an infringing tool to perform this procedure. In support of the client’s injunction requests, Brattle prepared analyses of irreparable harm arising from the rival company’s continued market presence. We demonstrated that the competitor’s continued infringement would significantly reduce the expected value of our client’s future investments in its fledgling women's health business, particularly because our rival already had a well-established presence in this arena. We also showed that in the absence of a preliminary injunction, the client might never be able to enjoy its innovator status due to the dynamic nature of the industry and the rapid pace of medical advances.
Brattle prepared testimony on irreparable harm that was used to successfully defend a global human resources consulting company against a competitor’s efforts to obtain a preliminary injunction that would have barred the consulting company from selling its software products for a two year period. Our testimony showed that our client had an insignificant share of the plaintiff’s target market and rarely marketed its product to the same firms as the plaintiff. Moreover, despite the plaintiff’s claims to the contrary, a large number of firms provide the accused software to customers. Hence, any injunction to remove our client from the market would have a de minimis impact on the fortunes of the plaintiff. This case settled on favorable terms for our client.