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Patents Court sets aside ex parte injunction granted to Ocado restraining disclosure of information to the United States International Trade Commission


By a written judgment dated Friday 11 June 2021, the Patents Court (Hacon HHJ) set aside an ex parte injunction obtained Ocado Group PLC and others (“Ocado”) against AutoStore Technology AS (“AutoStore”) restraining the disclosure of information.

The parties are engaged in multi-jurisdictional litigation, including litigation before the United States International Trade Commission (“US ITC”) concerning allegations that Ocado has infringed AutoStore’s patents for automated warehousing technology. In the US ITC proceedings Ocado is running a defence of equitable estoppel.

By this application, Ocado sought an injunction to restrain AutoStore from disclosing certain information to the US ITC that AutoStore contended was relevant to the equitable estoppel defence.

HHJ Hacon, sitting as a Judge of the High Court, set aside the interim relief obtained ex parte. The threshold test was not met and, even if it had been, the balance of irreparable harm fell clearly in favour of not granting relief.

The case is of particular interest because the Judge applied the threshold test applicable in anti-suit injunction cases, namely that of “high probability of success”. The Judge held that test was appropriate because the effect of any injunction would be to prevent the US ITC Judge from ruling on the admissibility of evidence in proceedings before it.

The judgment is here.

An appeal to the Court of Appeal has been expedited and will be heard on 1 July 2021.

Vernon Flynn QC acted for AutoStore on the Return Date, instructed by Kirkland and Ellis.

Thomas Plewman QC acted for Ocado on the Return Date, instructed by Powell Gilbert.