by Stephan von Petersdorff-Campen

The amount at issue in a legal claim serves as the basis for establishing the court fees and lawyers’ fees to be reimbursed to the successful party. The consequences (including indictable consequences) of a claim value that has been set too low have previously been the object of contributions to this blog.
§8 IV Unfair Competition Act (UWG) stipulates that the right to injunctive relief, which does exist in principle, is forfeit wherever it is asserted abusively. By analogy, the Court of Appeal Hamm applied this provision to copyright law and dismissed a claim for an injunction and award of lawyers’ costs that had accrued prior to proceedings. It found [...]

The FCJ decided in the recently published decision “Wundverband” [Wound Dressing] “Moelnlycke Health Care v. BSN Medical” (docket X ZR 70/12) on 19 February 2013 that an exclusive licensee is (in part) a legal successor of the patentee. As a consequence, as long as patentee’s claims (including such claims concerning the time-span after grant of an exclusive license) are pending at another German court, the exclusive licensee has no right to sue with regard to the same subject matter due to the force of res judicata of the judgement against the legal successor and the lis pendens rule.

Facts

The FCJ decision is concerned with a domestic case focussed on German civil procedural law, [...]

When a preliminary injunction is lifted, the debate arises regarding the amount of damages that the company affected by the preliminary injunction may claim against the applicant. A recent judgment of 6 May 2013 from Commercial Court number 6 of Barcelona has shed some light on this topic. The background of the case can be summarized as follows:

On 26 June 2009, Commercial Court number 6 of Barcelona ordered an “ex parte” preliminary injunction preventing a Spanish company from marketing generics of a patented medicament. After hearing the defendant, the preliminary injunction was then lifted on 29 January 2010. After the preliminary injunction was lifted, the defendant filed a complaint cla [...]

In an earlier post, I reported the news that a new piece of legislation (the so called “Balduzzi Decree”, Law No. 189/12 of 8 November 2012 confirming Law Decree 158/12 of 13 September 2012 – a consolidated version of the Decree is available here) introduced a rule which some have already labelled as “reimbursement price linkage”. In substance, according to Article 11 of the Balduzzi Decree, the Italian regulatory Authority will refrain from granting a reimbursable price to approved generic drugs when the reference product is still covered by a patent or SPC.

Last week, AIFA officially confirmed that it will apply such a rule, by issuing a communication to all pharmaceutical compan [...]

In a divided en banc decision, the U.S. Court of Appeals for the Federal Circuit affirmed the district court’s holding that the claims at issue in CLS Bank v. Alice Corporation are invalid under the “abstract idea” exception to 35 USC § 101. While a majority of the judges agreed that the method and computer-readable medium claims are invalid, they disagreed as to why. Further, the court was evenly split as to whether the systems claims are invalid. (With no majority agreement on that issue, the district court decision is affirmed). Even if this case makes its way to the U.S. Supreme Court, patent-eligibility will remain a murky area of U.S. patent law for the foreseeable future.

One of the remedies introduced by Directive EC 2004/48, of 29 April 2004, was preliminary injunctions aimed at prohibiting acts of infringement when there are indicia indicating that an act of infringement may be “imminent.” It is the nature of preliminary injunctions, which require an element of urgency, that patentees may be required to prove the need of a provisional prohibition before the main case is resolved. This is where the “imminent” requirement comes into play.

Against this background, in a recent case the parties discussed whether or not “imminence” is also a requirement for upholding an action aimed at prohibiting acts of infringement that have not yet taken place. In its judgme [...]