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Extraterritorial acts can constitute a patent infringement in Germany

The Bundesgerichtshof (German Federal Court of Justice) in the decision Audiosignalcodierung (judgement of 3 February 2015, X ZR 69/13) confirmed the principle established in the Bundesgerichtshof decision Funkuhr II, according to which the delivery of a product to a third party in a territory outside of Germany constitutes a patent infringement in Germany if the party was aware that the product will subsequently also be imported into Germany.

In the case Audiosignalcodierung concerning contributory infringement the defendant was a Chinese company that delivered means which constituted an essential element of the patented method, inter alia, to another company in China. Following the findin [...]

Fordham Conference 2015 – Second Medical Use Patents

Marleen H J van den Hors (BarentsKrans in the Netherlands) dealt with the interesting question of enforcement of second medical use patents and suggested that regulatory changes might be required to facilitate enforcement.  She pointed out that there has been different interpretations of Swiss-style claims in the Netherlands and the UK leading to a different basis for enforcing, for example in relation to direct and indirect infringement.

Generics can carve out the patented indication from their marketing authorisation and should avoid promoting the product for that indication. The generics could also send warning letters to health authorities, prescribers, pharmacies and end-users. It is d [...]

Piercing the Corporate Veil in Finland and Sweden – When Could Shareholders also be Held Liable for Patent Infringements?

This time we take a look at various decisions that share one thing in common — piercing the corporate veil doctrine. Even if these rulings are not purely patent law cases, they will definitely have influence on forthcoming litigations.

First, let us look at the recent Finnish Supreme Court case 2015:17, in which the defendant Oyj, a Finnish First North listed company, had sold products to Finnish customers using its own subsidiary Arctecho OÜ (Arctecho) without paying copyright levies.
Next, we turn to a Swedish decision (HD T 2133-14), in which the Swedish Supreme Court held that shareholders are liable for their company’s obligation to compensate for legal expenses to [...]

Monopoly on Test Results? Protection of Immaterial Products as “Fruits” of a Patented Method under Sec. 9 (3) German Patent Act

Based on method claims, German Patent Law does not only grant the patentee an exclusive right to exercise the method on the German territory, but also a monopoly to offer, bring into circulation or to use in Germany a “fruit” that is the immediate result of the patented method (Sec. 9 (3) German Patent Act). This is true even if the method has been carried out, and the “fruit” has therefore been “picked”, in another – not designated – country and has then been imported into Germany.

Following a 2012 decision of the Federal Supreme Court (“MPEG-2 Videosignalcodierung”), which specifies how this rule applies to immaterial products like data, the District Court Munich now ha [...]

Germany: Zwangsvollstreckung bei kartellrechtlichem Zwangslizenzeinwand, Higher Regional Court of Karlsruhe, 6 U 162/13, 19 February 2014

The CoA Karlsruhe held that the fact that a referral is pending before the CJEU regarding the issues of the criteria for raising the FRAND defense (C-170/13 Huawei) does not justify the suspension of the enforcement of an infringement judgment issued against a defendant. The court also expressed their expectation that – even after a future decision of the CJEU modifying the criteria set up by the Federal Court of Justice (BGH) in the Orange Book case – the minimum requirements of an acceptable offer and to render accounts for past infringement will still apply.

A full summary of this case has been published on Kluwer IP Law.

The Danish High Court (Eastern Division) upholds the City Court’s decision to deny an interim injunction against sale of generic pharmaceuticals containing drospirenone

On February 13, 2015 the Eastern High Court of Denmark issued a decision in an appeal in interlocutory proceedings regarding an application for an interim injunction against the marketing and sale of generic medicines (birth-control pills) containing, inter alia, drospirenone.

Bayer is the proprietor of two patents regarding a method for producing drospirenone. On June 25, 2013 Bayer (immediately before the administration of justice reform on the jurisdiction of the Maritime and Commercial Court in proceedings regarding interim injunctions concerning intellectual property entered into force) filed an application for an interim injunction against Sandoz’ marketing and sale of generic pharmace [...]

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