by Stephan von Petersdorff-Campen

The amount at issue in a legal claim serves as the basis for establishing the court fees and lawyers’ fees to be reimbursed to the successful party. The consequences (including indictable consequences) of a claim value that has been set too low have previously been the object of contributions to this blog.
§8 IV Unfair Competition Act (UWG) stipulates that the right to injunctive relief, which does exist in principle, is forfeit wherever it is asserted abusively. By analogy, the Court of Appeal Hamm applied this provision to copyright law and dismissed a claim for an injunction and award of lawyers’ costs that had accrued prior to proceedings. It found [...]

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 [...]

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 [...]

As the readers are well aware, quite often patented products are not necessarily marketed (or only marketed) by the patent owner. It is usual for patent owners to market their products through their subsidiaries and/or through third party co-marketers, which join forces with the former to obtain the best possible distribution of the patented product. This is particularly frequent in the pharmaceutical sector, where “co-marketing” agreements abound.

In this scenario, the potential launch of a competing product that may infringe the patent does not only threaten the patent rights of the patentee, but also the exclusive rights of the co-marketers. Against this background, Eisai Co. Ltd, the own [...]

Ensuring the independence and integrity of its judges is crucial for every court system.

After its first year of existence, the Swiss Federal Patent Court has slightly amended its Guidelines on Independence for the part-time judges of the Federal Patent Court. However, those guidelines have proven to be very useful in practice.

It is interesting to compare these guidelines with Article 7 of the planned Statute of the Unified Patent Court, which also concerns the impartiality of the judges of the new Unified Patent Court.

Since both court systems are based on a pool of judges, including part-time judges, both systems have to deal with the possible conflicts of interest of those judges.

To ens [...]

On 12 February I posted the first of two notes on the forthcoming joint FRAND trial arising out of actions between IPCom and Nokia (Claim No: HC 10 C01233) and HTC and IPCom (Claim HC 11 C02064), both in relation to IPCom’s European Patent EP 1,841,268 (the ‘268). In the first posting I concentrated on the IPCom v Nokia action and how the potential of a FRAND trial arose. In this second posting I explain how this became a joint trial with the HTC action and then set out the further progress of both matters towards a final hearing on this important issue.

The relationship between the HTC/IPCom case and the Nokia/IPCom case is summed up in a judgement of Mr Justice Roth of 31 May 2012. [...]