In cases of UK patent infringement, the courts may grant a variety of remedies to successful claimants (including damages, court-ordered injunctions, and declarations of non-infringement). In some cases, remedies are also available on an interim basis – for example, an interim injunction that requires a party to refrain from an allegedly infringing act pending outcome at trial.
In the recent decision, Shenzhen Carku Technology Co, Ltd v The Noco Company  EWHC 2104, the High Court of England and Wales considered and refused a request for an interim declaration. In this case, the claimant requested an interim declaration of non-infringement of the defendant’s patent.
The claimant, Shenzhen Carku Technology Co, is a designer and manufacturer of car battery jump starts. The defendant, The NOCO Company, owns a patent for a portable vehicle battery jump start apparatus. NOCO complained to the online retailer Amazon about Carku’s listed products, as they believed their patent was being infringed by those products. Amazon took down some of Carku’s products, but offered to consider relisting them if they provided a “judicial decision” declaring non-infringement of the patent.
In court, Carku requested a summary judgement on their request for a declaration of non-infringement and, in the alternative, they requested an interim declaration of non-infringement to persuade Amazon to re-list their products.
The Judge acknowledged that interim declarations (which were developed as an alternative to interim injunctions) can be granted by the court in any proceedings. However, the Judge expressed doubt on whether such a remedy is available in the context of patent non-infringement.
In particular, the Judge considered a “clear and consistent line of case law” establishing that interim declarations are not appropriate or, at the very least, difficult to get in respect of questions that only permit of a final answer. The Judge further concluded that patent infringement is such a question, stating:
“…it seems to me that despite the claimant’s attempts to persuade me to the contrary, infringement is indeed a yes/no question, and it only permits a final answer, not a temporary one. The products either infringe or they do not. It would not be satisfactory to grant a declaration one day which might become false another day. That is because it cannot be right to say that certain acts infringe a patent one day but the same acts do not infringe the same patent another day. It is not as if there is any interim state of affairs which is subject to change.”
In addition to the above, the judge found no evidence that an interim declaration would actually solve Carku’s issue in this case. Rather, the judge believed it was most likely that Amazon would wait for a final ruling on infringement anyway, so an interim declaration would serve no useful purpose. The interim declaration was thus refused.
Based on the reasoning and case law set out in the decision, interim declarations do not seem to be an appropriate remedy in the yes/no question of patent infringement, particularly not with the aim of reversing a de-listing of products on online distribution platforms. It would appear parties seeking to re-list their products would need to await a final judgement regarding patent infringement.