Ex parte measures are rather difficult to obtain in patent matters in Switzerland (except from evidence-protection measures). Nevertheless, the Swiss Federal Supreme Court had the opportunity to opine on this subject in a recent decision dated 21 August 2013. Although this case will become better known because it was the first time that the first instance, the Swiss Federal Patent Court, had to deal with the doctrine of equivalence (and affirmed an infringement by equivalent means, see the preliminary decision of the Federal Patent Court here), it is also worth to analyze the requirements of ex parte measures in Switzerland.
In the case at hand, the patentee was informed in December 2012 by [...]
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 [...]
A recent decision of the Higher Regional Court (Oberlandesgericht) Düsseldorf now confirms that a holding company cannot easily dive away under the patent infringing activities of its subsidiaries.
Many companies are designed in the form of a group, having a holding company at the top and a number of subsidiaries which are directly or indirectly owned by the holding company. Different working areas are split between the companies of the group.
If one of these subsidiaries infringes a patent, the question arises whether and to what extent the holding itself is responsible for the infringement. Is the holding liable to compensation of damages? Does the holding have to render accoun [...]
The Mannheim Regional Court decided on March 8, 2013 (court docket: 7 O 139/12) that a supplier which is located abroad is regularly only liable for participating in patent-infringing acts in Germany if the foreign supplier learns, e.g. by means of a warning letter, that its supply of products to the German market may result in a patent infringement under German law and if the supplier does not refrain from further shipments into Germany.
by Stefan Lieck
In a judgement of 17 January 2013 (docket no. I-2 U 87/12), the Düsseldorf Higher Regional Court confirmed its previous case law according to which the issuance of a preliminary injunction against generic companies based on patent law is possible under less stringent conditions.
According to the case law of the Düsseldorf Higher Regional Court, a preliminary injunction may only be issued if the validity of the asserted patent may be assumed to be sufficiently certain. This is generally the case only if the patent has already survived the first instance of opposition or nullity proceedings (OLG Düsseldorf – Olanzapin; OLG Düsseldorf – Harnkatheterset). In exceptional cas [...]
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 [...]