by Hetti Hilge
In two recent and surprising decisions the Bundesgerichtshof (German Federal Court of Justice) clarified the effects of a first instance decision nullifying the patent in suit on the enforcement of a parallel infringement finding (including an injunction) and, upon second review, remedied what it considers an unintended oversight by the legislator (“Planwidrige Regelungslücke”) in the specific circumstances of patent litigation and bifurcation. Effectively “overruling” its own previous decision in the very same case (Microsoft vs Motorola), the court now ordered the temporary suspension of the enforcement of an appeal court judgment finding for infringement, against t [...]
On 23 September 2014, the cour d’appel de Paris, in Genentech v. Hoechst and Sanofi Aventis Deutschland, Docket № 12/21810, decided to refer to the Court of Justice of the European Union the following question:
“Should the provisions of Article 81 of the Treaty, now Article 101 of the Treaty on the Functioning of the European Union, be interpreted as an obstacle to giving effect, in case of invalidation of the patents, to a licence agreement which imposes on the licensee royalties for the sole use of the rights attached to the patents under licence?”
Through this referral the court questions the compatibility [...]
The juxtapositon of patent limitations in national nullity proceedings and before national patent offices on the one hand and according to article 105a EPC on the other hand is a hotly debated issue not only in Switzerland.
In a recently published decision of 2 June 2014 (4A_541/2013), the Swiss Federal Supreme Court had to decide – inter alia – whether the limitation of the European Patent 1 508 436 according to article 105a EPC which only took place after the revocation of the Swiss portion of the patent by the Federal Patent Court must still be taken into account.
In brief, claimant requested the nullity of EP 1 508 436 before the Swiss Federal Patent Court.
The patent relates [...]
As already described in a previous blog entry the Belgian Supreme Court nullified a decision of the Antwerp Court of Appeal granting a descriptive seizure (“beschrijvend beslag”; “saisie-description”) on the presumption of validity of (European) patents. The written decision of the Supreme Court is now available (link). The Supreme Court has followed the advice of the Advocate-General in his Opinion of 6 June 2014, although its judgment does not deal with all arguments developed by the Advocate-General (link).
To understand the reasoning of the Supreme Court, it should be noted that the descriptive seizure was based on a European patent and a related French patent. The UK pa [...]
Preliminary injunction (“PI”) and seizure proceedings are powerful weapons in the hands of patentees in Belgium. Often, the success of a product launch and the outcome of a patent dispute will in practice be determined by a PI or seizure that prevents or ceases market entry by the alleged infringer.
In the context of such proceedings, Belgian courts asses the parties’ rights and claims on a prima facie (first sight) basis. As a result, they have tended to refuse to take patent invalidity arguments into account on the basis that European patents are prima facie valid given the substantive examination by the European Patent Office (“EPO”). In t [...]
PI proceedings have always been a powerful weapon for patentees in Belgium. In such proceedings before the President of the Commercial Court a full legal analysis of the parties’ rights cannot be made. The President will only prima facie asses the parties’ rights and claims. As a result, invalidity arguments are not taken into account given the presumption of validity of a European patent, even if the patent has been revoked in EPO opposition proceedings or if there are foreign decisions invalidating the parallel national patents.
In the Belgian escitalopram-litigation Lundbeck was able to obtain a PI under its escitalopram SPC despite the fact that an earlier first instance deci [...]