In Novartis AG v Hospira UK Ltd  EWCA Civ 583 (22 May 2013) the Court of Appeal, consisting notably of three former Patents Court judges, Lewison, Kitchin and Floyd LLJ, restated the principles that apply to the grant of an interim injunction pending appeal where the claimant was not successful at first instance. Floyd LJ gave the judgment of the court, saying:
I would summarise the principles which apply to the grant of an interim injunction pending appeal where the claimant has lost at first instance as follows:The Court decided that the trial judge had been right to say that the best way of preserving the status quo pending trial would have been to grant an injunction (had one been necessary), but that he had been wrong to say that the same did not apply pending the appeal. The Court therefore allowed the appeal, granting the injunction until final judgment in the appeal or further order.
i) The court must be satisfied that the appeal has a real prospect of success.
ii) If the court is satisfied that there is a real prospect of success on appeal, it will not usually be useful to attempt to form a view as to how much stronger the prospects of appeal are, or to attempt to give weight to that view in assessing the balance of convenience.
iii) It does not follow automatically from the fact that an interim injunction has or would have been granted pre-trial that an injunction pending appeal should be granted. The court must assess all the relevant circumstances following judgment, including the period of time before any appeal is likely to be heard and the balance of hardship to each party if an injunction is refused or granted.
iv) The grant of an injunction is not limited to the case where its refusal would render an appeal nugatory. Such a case merely represents the extreme end of a spectrum of possible factual situations in which the injustice to one side is balanced against the injustice to the other.
v) As in the case of the stay of a permanent injunction which would otherwise be granted to a successful claimant, the court should endeavour to arrange matters so that the Court of Appeal is best able to do justice between the parties once the appeal has been heard.