Tearlab Corporation v. I-Med Pharma Inc., 2017 FCA 8

This was an appeal against Justice Manson's unreported decision in 2016 FC 606, dismissing TearLab's motion for an interlocutory injunction to prevent the sale of the i-Pen by I-MED Pharma, pending the determination at trial of TearLab's patent infringement claim. The Court had previously dismissed TearLab's motion for an interim injunction on the basis that it failed to present qualified witnesses and cogent evidence to satisfy the last two prongs of the tripartite test for granting injunctions (see 2016 FC 350 and our summary here).

Justice Manson dismissed the interlocutory injunction motion for similar reasons. Justice Manson found that TearLab failed to meet the second prong of the tripartite test and that the balance of convenience favoured I-MED. In respect of the second prong, Justice Manson determined that it would be reasonably possible to quantify the damages triggered by the alleged infringement as patent rights are economic in nature. In addition, Justice Manson found that TearLab could not claim it was susceptible to irreparable harm merely because of its difficulty or inability to quantify damages.

The Court of Appeal dismissed the appeal, finding that Justice Manson did not commit a reviewable error of law, a misapprehension of the facts or an inappropriate weighing of the evidence.