Foss-Solbrekk on Interim Losses Resulting from Wrongly-Granted Preliminary Injunctions

Following up on my post from Wednesday (with update), I though I should note a recent article by Katarina Foss-Solbrekk, titled Delay-and-Pay:  Prolonging Pharmaceutical Patent Proection Without Paying the “Price”, 56 IIC 1684 (2025).  Here is the abstract: 

This article argues that actors use the patent system as part of a “delay-and-pay” strategy to preserve drug prices for as long as possible by delaying generic/biosimilar market entry – and that they have a significant financial incentive to do so. This strategy is based on the notion that it is much more profitable for patentees to delay generic/biosimilar market entry by way of a patent infringement claim and ensuing injunction, then pay damages to the enjoined party should the infringement claim be defeated. Indeed, patentees have much to gain and little to lose under “delay-and-pay”. My analysis establishes that the money national health bodies spent purchasing the more expensive, patented drug whilst the interim injunction remained in effect is not usually compensated following a patent revocation and discharged injunction. That is neither just, nor fair: the losses of national health bodies ought to be recovered. 

Dr. Foss-Solbrekk’s thesis is based on the economic reality that the patentee’s gain from a wrongly-issued preliminary injunction often will exceed the loss suffered by the enjoined party; and she makes a compelling argument that national health services, who also often suffer substantial harm, also should be reimbursed for their interim losses.  The topic of how the law should respond to wrongly-issued injunctions is one that I too discuss, in chapter 4 of my recent book Wrongful Patent Assertion:  A Comparative Law and Economics Analysis (Oxford Univ. Press 2026), at pages 85-104; and I regret that Dr. Foss-Solbrekk’s paper came out too late for me to engage with there—though I do cite one of her other papers, The Divisional Game: Using Procedural Rights to Impede Generic/Biosimilar Market Entry, 53 Intʼl Rev. Intell. Prop. & Comp. L. 1007 (2022), in chapter 7, and I look forward to reading more of her work in the future. 

I also discovered, in reading Dr. Foss-Solbrekk’s recent paper, a typographical error in my book, where I cited Professor Uri S. Hacohen’s paper Evergreening at Risk, 33 Harv. J.L. & Tech. 479 (2020), but spelled his name “Haconen”.  My apologies to Professor Hacohen.  Perhaps the three of us will all meet some day at some conference on wrongly-issued injunctions—a topic that really does deserve increasing scrutiny!