Summary
There were two claimant sister companies (forming part of the same group of companies). MAB was a Swedish company, and MUK was a British company. The defendants were two companies from the BSN group of companies.
Court proceedings were initiated in England for the UK patent. The proprietor of the patent was MAB.
The English court was second seised.
There were parallel proceedings in Sweden. The Swedish court was first seised on 27th March 2008.
There were two applications before the English court. First, an application for a stay of the English proceedings. This was initiated by BSN. Second, an application for injunctive relief initiated by the claimants.
The application for a stay was refused as the interests of MAB and the interests of MUK were not regarded as identical.
The injunction was refused.
Mr Justice Floyd held:
“31 The most difficult question is whether, in the context of the present case, the interests of the parties in the two actions are identical and indissociable. At one, rather high level the interests of MAB in Sweden and MAB and MUK together in the UK are identical: an interest in preventing the infringement of MAB’s patent. But Mr Purvis QC submits that MUK have, by the acquisition of the exclusive licence, acquired the right to protect its UK business from damage. There is as yet no counterclaim for infringement in Sweden, and, he submits, it may not be possible under the Convention for an additional party to counterclaim there, particularly as art.6(3) only allows for jurisdiction to be founded for a counterclaim “arising from the same contract or facts on which the original claim was based”. So, if MUK is treated as the same party as MAB, MUK may be deprived of a right to damages which is distinct from any possessed by MAB.
[…]
75 MAB and MUK’s approach in the Swedish proceedings is also not consistent with an urgent need for an interim injunction. Rather than taking advantage of the fact that BSN were submitting to the jurisdiction in Sweden, MAB and MUK elected to expend significant effort on procedural challenges that have delayed the progress of the Swedish action so that a judgment on the merits has not yet been issued. Their procedural approach in Sweden is not consistent with an urgent need for relief either there or here. Their failure even to commence an action in Germany is equally odd.” [31 and 75]