Not A Wet Eye In The Court: TearLab Appeal Dismissed

In TearLab v I-MED, the Federal Court of Appeal dismissed TearLab’s appeal of Justice Manson’s dismissal of its motion for an interlocutory motion.

Canadian Patent No. 2,494,540 claims methods for measuring the osmolarity of tears, which is useful in the diagnosis and treatment of dry eye disease. TearLab is the exclusive licensee under the 540 Patent and sells an osmolarity measuring system. TearLab learned that I-MED was accepting orders for its own osmolarity measuring device and planned to begin sales in March 2016. TearLab commenced an action for infringement of the 540 Patent.

TearLab first moved for an interim injunction preventing the sale of the I-MED product. Justice Russell applied the test set out by the Supreme Court in RJR-MacDonald and dismissed the motion because TearLab had not established that that it would suffer irreparable harm if the injunction were not granted.

In its subsequent motion for an interlocutory injunction, TearLab included expert evidence regarding irreparable harm. Justice Manson noted that irreparable harm is unusual in patent infringement cases concluded that TearLab had not proven that it would suffer irreparable harm. Justice Manson therefore dismissed the motion.

On appeal, Justice Scott rejected Tear Labs’ submissions based on an alternate test for an injunction set out by the UK House of Lords in American Cyanamid and “outdated” decisions of the Federal Court and Federal Court of Appeal that were not consistent with RJR-MacDonald and its progeny. Justice Scott also characterized TearLab’s submissions as improperly seeking to reweigh the evidence that had been considered by Justice Manson, holding:

[10] It is not this Court’s role to decide de novo in an appeal for an interlocutory injunction (Canada (Attorney General) v. Simon, 2012 FCA 312 at paragraph 2, 441 N.R. 149 [Simon]). Rather, this Court owes deference to the motions judge’s determinations in the absence of a fundamental error in its appreciation of the evidence.

A copy of the Federal Court of Appeal’s decision may be found here.