On March 24, 2016, Justice Russell dismissed TearLab’s motion for an interim injunction that sought to prevent I-Med Pharma Inc. from marketing its i-Pen System prior to the disposition of TearLab’s motion for an interlocutory injunction.
Canadian Patent No. 2,494,540 relates to systems for measuring the osmolarity of fluid samples. TearLab markets a system for measuring the osmolarity in patient’s tear fluid, a useful indicator in the diagnosis and treatment of dry eye disease, and is the exclusive licensee under the 540 Patent.
I-Med announced that it intends to launch its i-Pen system in March 2016. TearLab contends that the i-Pen system falls within the scope of the 540 Patent and commenced a patent infringement action on February 18, 2016. TearLab also brought motions for interim and interlocutory injunctions to prevent I-Med from launching its i-Pen system.
Justice Russell noted that in order to receive an interim injunction TearLab must establish the criteria under RJR MacDonald, namely, (1) there is a serious issue to be tried; (2) that they will suffer irreparable harm in the absence of the injunction; and (3) that the balance of convenience favours granting the injunction.
Justice Russell held that TearLab had not established that it would suffer irreparable harm during the interim period. More specifically, while TearLab relies on the evidence of several of its employees, none of the affiants were qualified to convince the Court that any damages suffered by TearLab cannot be compensated for in damages, holding:
 It is entirely understandable that, given the context of this dispute, TearLab fears it will suffer an unquantifiable loss of market opportunity, loss of an industry opportunity and potential customer opportunity, lost sales, and loss of goodwill. However, these fears need objective support from someone with the expertise to say that they cannot be quantified in the event that the injunction is not granted. Without such evidence, the alleged harm remains speculative.
In dismissing the motion, Justice Russell stated the Court could not infer irreparable harm based on the unsupported allegations of TearLab’s corporate and/or unqualified witnesses. Justice Russell noted that i-Med provided direct evidence from Dr. Rosenblatt, a qualified witness who explained why the damages feared by TearLab are quantifiable. Dr. Rosenblatt was not cross-examined on his affidavit.
A copy of Justice Russell’s Order and Reasons may be found here.