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IV. INFRINGEMENT AND ENFORCEMENT
successful at trial, will not be able, in most cases, to locate or to effectively restrain from
reception of encrypted satellite broadcasts without authorization of the broadcasters or payment
of subscription fees. That will compromise the security of the plaintiffs’ ... system and the
interests of those who use it, like the plaintiff First Choice, on an ongoing basis. Any loss to the
reputation of the plaintiffs and continuing monetary losses to them will be almost impossible to
assess with any precision. Finally, ... any substantial damages that may be awarded in favour of
the plaintiffs at trial, even for the intervening period until trial, are not likely to be recoverable
from the defendants.
The balance of convenience
... The defendants will suffer harm if an injunction is now awarded. They claim that harm will
be irreparable. [They urge] that the grant of an interlocutory injunction would, in effect, dispose
of the action finally in favour of the plaintiffs because there would be nothing left in the
defendants’ interests to warrant proceeding to trial. That principle is a well-recognized one for a
court refusing to exercise its discretion to grant an injunction.
Here there is no basis to conclude that the injunction sought, to preclude infringement of the
plaintiffs’ patent and copyright interests, would put the defendants out of business. ... [T]he
defendants have been continuing in business despite an interim injunction and materials held
under an Anton Pillerorder [see the following case — Ed.] issued some 15 months before the
application for an interlocutory injunction was heard.
More serious as a basis for finding irreparable harm to the defendants is their claim that the
injunction, if awarded, would delay their technological development of devices for a substantial
secondary market and that it would facilitate the plaintiffs’ technological development of
competing software... I am persuaded that if an injunction is now awarded, and ultimately at trial
the defendants’ devices are found not to constitute infringement of the plaintiffs’ proprietary
interests, the harm to the corporate defendants’ fledgling enterprises seeking to get established
in a highly competitive market may not be readily addressed in damages. This constitutes
irreparable harm, in my opinion.
Finally, the plaintiffs here undertake through their solicitors that they will meet any damages
found by the court to be caused to the defendants if an injunction now be awarded, but at trial it
is found that the defendants have not infringed the plaintiffs’ proprietary interests by the acts
alleged. There is no evidence that the substantial plaintiff corporations would not be able to meet
that undertaking.
On the other hand, the defendants do not advance a similar undertaking, but they do
offer to maintain an account of all devices sold pending trial if the injunction now sought is
refused. That is an inadequate undertaking should the plaintiffs’ claim to substantial damages be
upheld.
In all of these circumstances, I am of the opinion that the balance of convenience in this case
favours the award of an injunction pending trial of the issues.
Conclusion
I have concluded that the pleadings and the evidence produced clearly indicate that there are
serious issues to be tried. If an interlocutory injunction is not awarded the plaintiffs will suffer
irreparable harm pending trial of the issues. In considering the balance of convenience, in the
circumstances of this case, that balance favours the grant of an injunction pending trial of the
issue or further order of the court.
