9.8.2 Stays pending appeal
If one or both parties are given permission to appeal parts of a decision, the question may arise as to whether the enforcement of a decision or a part thereof should be stayed pending the outcome of the appeal. Generally speaking, the existence of an appeal may lead to the stay of an injunction but is unlikely to stay an inquiry as to damages or account of profits or as to the assessment of costs unless this is agreed to by the parties. If the parties wish to stay a detailed assessment of costs pending appeal, they will need to make an application to the court whose order is being appealed or the appeal court.160
In deciding whether to grant a stay of an injunction, the court must consider the balance of convenience.161 The object is to arrange matters so that, when the appeal is heard, the appellate court can do justice between the parties. Where the potentially adverse consequences of granting the stay are relatively evenly balanced, the court will probably maintain the status quo pending the outcome of appeal.162 The party seeking the stay is likely to be required to give a cross undertaking in damages.
The commencement of an appeal by an unsuccessful patentee on validity will lead to a stay of any order for revocation pending the outcome of the appeal.