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Levonorgestrel, Court of Appeal of Burgos, 2 September 2013

The Court of Appeal of Burgos dismissed the appeal against the Judgment of the Provincial Court of Burgos, which upheld a patent for a pharmaceutical composition and its use, despite the fact that clinical trials regarding the patented composition and the patented use were mentioned in the prior art.

The full summary of this case has been posted on Kluwer IP Law.

Patent litigation around the kitchen: from ancient Greece to Thermomix.®

Spanish Courts have recently decided two interesting cases that show that patent litigation is not the exclusive realm of big pharma or high tech. Patent litigation extends its tentacles to quotidian cooking tools that we and / or our most significant others use day after day in the kitchen.

The first judgment, handed down by the Supreme Court on 6 June 2013, put to an end the long-standing judicial battle between the manufacturer of the famous “Thermomix®” automatic cooking machine and a Spanish company that manufactures another automatic cooking machine under the trademark “MyCook®”.

The proceedings began in 2007, when the claimant filed a patent infringement action against the defendant [...]

Clearing the way

A long time has already passed since 23 October 2001, when Judge Jacob ordered a preliminary injunction preventing the launch of the first paroxetine generics in England.  To cut a long story short, the rationale was that, if there is an obstacle blocking your way into the “garden”, you have to clear the way before entering the “garden”.  Otherwise, you may be injuncted.  This rationale has since then been followed by Judges in England, but also in other jurisdictions such as Germany.

 On 22 July 2013, Commercial Court number 4 of Barcelona handed down an interesting decision wherein the same logic transpires.  The patent owner had sent a warning letter to a third party who had obtained [...]

Barcelona Court of Appeal writes penultimate word on “imminence”

On 10 June 2013 the Court of Appeal of Barcelona handed down a very interesting decision that appears to have written the penultimate word in the long saga of decisions discussing the meaning of “imminence.”

As discussed in other blogs, although the so-called “Enforcement Directive” (Directive 2004/48/EC) was meant to strengthen the protection of intellectual property rights across the European Union (“EU”), in some areas (for example, preliminary injunctions) it had the opposite effect. This was due to the introduction of a new requirement (imminence) that was not previously present in the patent laws of some EU member states. For example, in Spain, in the early 2000s, Courts would order a [...]

Court sheds light on damages caused by preliminary injunctions

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 [...]

Is “imminence” required in the main proceedings?

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 [...]

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