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Germany – late filing of new prior art can be too late

The Oberlandesgericht Düsseldorf (Higher Regional Court, appeal instance) just issued a court order on the admissibility of new prior art that the defendant discovered only in the second instance infringement proceedings. The defendant and appellant in the proceedings had requested a stay of the infringement appeal based on this new and relevant prior art until a decision in the parallel invalidity action will be rendered. Irrespective of the admissibility of the new citation in the parallel invalidity action, the infringement appeal court requested the defendant to provide sufficiently justified reasons for the late filing in order to admit the new citation.

Pursuant to the formal rules o [...]

Salt limitation leads to sweet and sour Court of Appeal judgment

by Gregory Bacon and Brian Cordery

The Actavis v Eli Lilly UK litigation concerning pemetrexed (sold by Eli Lilly under the brand Alimta(®) has already been widely reported in light of Actavis’ innovative application to the English court for declarations of non-infringement (DNIs) of national designations of a European Patent in addition to the UK designation. The latest instalment concerns the Court of Appeal’s judgment in the appeal on the merits. In summary, the Court of Appeal refused to grant the declarations sought by Actavis. This overturned the decision of Mr Justice Arnold in the Patents Court, who had held that each of the UK, French, Italian and Spanish national designatio [...]

SPC revoked, PI lifted, but no damages awarded

In the Sanofi v. Teva ruling of 10 July 2014, the Court of Milan clarified the test for abuse of process, and denied an award of damages allegedly caused by the issue of a preliminary injunction which was later lifted due to the revocation of the enforced SPC.

The case concerned the Italian part of the irbesartan saga, in which Sanofi was engaged in several countries in the enforcement of its CoAprovel SPCs, covering irbesartan + hydrochlorothiazide. In the aftermath of the Medeva/Georgetown decisions, Sanofi obtained preliminary injunctions against generic CoAprovel in several jurisdictions, on the assumption that the combination irbesartan + hydrochlorothiazide was “specified in the wo [...]

Spanish Courts move one step further towards the path of specialisation

In a world of increasing legal complexity, it is a common ground – except in Luxembourg – that the lack of specialisation results in the administration of injustice rather than in the administration of justice. The President of Section 15 of the Barcelona Court of Appeal appeared to have this logic in mind when, in 1993, he had the vision to persuade his fellow Judges to assign the different Sections of that Court to various specialised areas. For example, it was decided that Section 15 would be the only competent Section to resolve appeals in patent cases. At that time this was an absolute revolution, as the old structures and inertia of the Spanish judicial system was such that this gr [...]

How low can you go? Thresholds for access to seized evidence in the Netherlands

The seizure of evidence is part of every patent litigator’s (pre-trial) arsenal. To some extent this measure is harmonised by the Enforcement Directive (art. 6 Directive 2004/48/EC). However, it does not yet have the same fire power in every European state. To get a taste of the Dutch state of play, specifically what the threshold is to get access to seized evidence, two fairly recent Dutch decisions will be discussed.

The first is a PI decision of the Court of Appeal of Arnhem-Leeuwarden concerning the grant of access to seized evidence (Court of Appeal of Arnhem-Leeuwarden 16 December 2014, Econvert v. Voith). It stands out for two reasons. First, the court appears to set a low threshold [...]

Requirement of irreparable harm: Swiss Federal Supreme Court puts spokes in appellants‘ wheels in appeals against decisions in summary proceedings

Although this is a patent law blog a recently published decision of the Swiss Federal Supreme Court in an appeal against a dismissed request for a preliminary injunction in the copyright sector is worth being discussed in more detail here. It will make life harder also for petitioners who see their hopes dashed before the Swiss Federal Patent Court and consider filing an appeal.

In its recently published decision dated November 27, 2014 the Swiss Federal Supreme Court made it substantially harder for parties who succumb in summary proceedings to appeal their cases to the Federal Supreme Court. This recent decision concerns a copyright case but it has a significant impact on Swiss patent liti [...]

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