EITHER DIRECTLY OR BY THE GRANT OF LICENCES TO THIRD PARTIES, AS WELL AS THE RIGHT TO OPPOSE INFRINGEMENTS ( SEE THE AFOREMENTIONED JUDGMENT IN MERCK ).
12 HOWEVER IT SHOULD BE STATED THAT IN THE PARTICULAR CASE WHERE A PATENT IS ENDORSED "LICENCES OF RIGHT", THE SUBSTANCE OF THE EXCLUSIVE RIGHTS OF THE PATENT PROPRIETOR IS APPRECIABLY ALTERED .
13 IT IS CLEAR FROM THE NATIONAL COURT' S ANALYSIS OF THE PATENTS ACT 1977 THAT IN THE UNITED KINGDOM, IN CONTRAST TO THE PROPRIETOR OF AN ORDINARY PATENT, THE PROPRIETOR OF A PATENT ENDORSED "LICENCES OF RIGHT" CANNOT OPPOSE THE GRANT OF SUCH A LICENCE TO A THIRD PARTY WHO APPLIES FOR A LICENCE IN ORDER TO MANUFACTURE AND MARKET THE PRODUCT IN QUESTION IN THAT MEMBER STATE BUT HE RETAINS THE RIGHT MERELY TO OBTAIN A FAIR RETURN .
14 IN THOSE CIRCUMSTANCES IT MUST BE CONSIDERED THAT THE POWER OF NATIONAL COURTS TO PROHIBIT THE IMPORTATION OF THE PRODUCT IN QUESTION MAY BE JUSTIFIED UNDER THE PROVISIONS OF ARTICLE 36 ON THE PROTECTION OF INDUSTRIAL AND COMMERCIAL PROPERTY ONLY IF THAT PROHIBITION IS NECESSARY IN ORDER TO ENSURE THAT THE PROPRIETOR OF SUCH A PATENT HAS, VIS-A-VIS IMPORTERS, THE SAME RIGHTS AS HE ENJOYS AS AGAINST PRODUCERS WHO MANUFACTURE THE PRODUCT IN THE NATIONAL TERRITORY, THAT IS TO SAY THE RIGHT TO A FAIR RETURN FROM HIS PATENT .
15 THAT IS THEREFORE THE TEST WHICH MUST BE APPLIED IN EXAMINING THE MERITS O F A NUMBER OF ARGUMENTS RAISED BEFORE THE COURT, BOTH BY ALLEN AND HANBURYS AND BY THE UNITED KINGDOM, IN ORDER TO JUSTIFY AN INJUNCTION PROHIBITING IMPORTS GRANTED AGAINST AN IMPORTER-INFRINGER .
16 IT HAS BEEN OBSERVED IN THE FIRST PLACE THAT AN IMPORTER MAY HAVE NO SUBSTANTIAL PRESENCE IN THE IMPORTING MEMBER STATE, IN PARTICULAR WHERE HIS ASSETS AND EMPLOYEES ARE NOT SUBJECT TO THE JURISDICTION OF THAT STATE . AN INJUNCTION PROHIBITING HIM FROM IMPORTING THE PRODUCT IS THEN JUSTIFIED UNTIL THE PATENT PROPRIETOR HAS BEEN GUARANTEED ACTUAL PAYMENT OF THE SUMS DUE TO HIM .
17 HOWEVER, THAT ARGUMENT CANNOT BE ACCEPTED IN THE CASE OF A MEMBER STATE WHERE, UNDER THE RELEVANT LEGISLATION, THE FACT THAT MANUFACTURERS BASED IN ITS TERRITORY DO NOT HAVE ADEQUATE ASSETS CANNOT JUSTIFY THE GRANT OF AN INJUNCTION AGAINST THEM UNTIL THEY HAVE OFFERED GUARANTEES OF PAYMENT . FOR A MANUFACTURER BASED IN THE TERRITORY OF A MEMBER STATE AS WELL AS FOR AN IMPORTER SUCH GUARANTEES OF PAYMENT CAN ONLY BE INCLUDED AMONG THE TERMS FIXED IN THE LICENSING AGREEMENT OR, IN DEFAULT OF AN AGREEMENT, BY THE COMPETENT NATIONAL AUTHORITY .
18 IT HAS ALSO BEEN MAINTAINED THAT AN INJUNCTION PROHIBITING IMPORTS MAY BE JUSTIFIED BY THE DIFFICULTY OF CARRYING OUT CHECKS ON THE ORIGIN AND QUANTITIES OF GOODS IMPORTED, ON THE BASIS OF WHICH THE ROYALTIES PAYABLE TO THE PATENT PROPRIETOR MUST BE CALCULATED .
19 HOWEVER, IT SHOULD BE POINTED OUT THAT IT MAY ALSO BE DIFFICULT TO CHECK THE