SINGAPORE Law and Practice Contributed by: Tony Yeo, Meryl Koh, Rozalynne Asmali and Javier Yeo, Drew & Napier LLC
be required to undertake to the court to compensate the defendant in the event that their claim fails and the interim injunction has caused the defendant loss. An application for an interim injunction must be made by summons together with a supporting affidavit. The supporting affidavit should set out the nature of the alleged infringing acts, whether these acts are impending and/or continuing, the strength of the pat ‑ ent proprietor’s case on infringement and the strength of the validity of the patent. It should also provide evidence as to why damages are not an adequate remedy, thereby necessitating an interim injunction. Most applications for interim injunctions are made with notice (ie, inter-partes). If the application is filed with notice, the alleged infringer will be given the opportu ‑ nity to file a reply affidavit to set out its response. The court will manage the timelines. The alleged infringer is typically given 2–3 weeks to respond with its reply affidavit, and the application will be fixed for a hear ‑ ing 4–6 weeks from the date that the application for interim injunction is filed. The application will be heard before a judge. Where the case is urgent and where notice to the alleged infringer will significantly prejudice the patent proprietor or nullify any benefit of an interim injunc ‑ tion (if granted), the application may be made and heard without notice (ie, ex-parte). Even if the pat ‑ ent proprietor intends to file an ex-parte application for injunction, the Supreme Court Practice Directions 2021 requires the patent proprietor to give notice to the other concerned parties prior to the hearing. The notice may be given by way of email, or, in cases of extreme urgency, orally by telephone. Except in cases of extreme urgency or with the permission of the court, the party must give a minimum of two hours’ notice to the other parties before the hearing. The notice should inform the other parties of the date, time and place fixed for the hearing of the application and the nature of the relief sought. If possible, a copy of the originating process, the summons without notice or the originating application without notice (if no origi ‑ nating process has been issued yet) and supporting affidavit(s) should be given to each of the other parties in draft form as soon as they are ready to be filed in court. At the hearing of the application without notice,
in the event that some or all of the other parties are not present or represented, the applicant’s solicitors should inform the court of: • the attempts that were made to notify the other parties or their solicitors of the making of the appli ‑ cation; • what documents were given to the other parties or their solicitors and when these documents were given; and • whether the other parties or their solicitors consent to the application being heard without their pres ‑ ence. Notice need not be given if the giving of the notice to the other parties, or some of them, would or might defeat the purpose of the application without notice. However, in such cases, the reasons for not following the directions should be clearly set out in the affidavit prepared and filed in support of the application with ‑ out notice. Even if the interim injunction is not granted, a party may apply for an expedited trial of the action. Although it is not a requirement, the court may take into account the expediency on which the application for interim injunction is filed. If an application for inter ‑ im injunction is filed long after the alleged infringing product has been released in the Singapore market, then the court may infer that it is not a situation where damages cannot compensate the loss, because if that were true, the patent proprietor should have taken steps to arrest the problem and stop the release of the product as soon as possible. In specific relation to therapeutic products to be reg ‑ istered in Singapore, pursuant to the Health Products Act (HPA) and the Regulations, a 30-month moratori ‑ um on registering the said products is available to pat ‑ ent proprietors who are put on notice that an applicant is seeking to register a therapeutic product which is related to a patent that is currently in force. This mora ‑ torium is automatic and will kick in on the date that the patent proprietor commences a patent infringement action against the applicant. In practice, this is a more viable option than the customary qua timet injunction to prevent an imminent threat of infringement.
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