Brussels court of appeal, 27 June 2012, Lundbeck / Eurogenerics, case number 2012/KR/129 and 2012/KR/137 (PI proceedings)
In an earlier decision from the Belgian supreme court (reported here on the EPLAW Patent Blog), the Belgian tier of a European patent was declared prima facie valid despite having been revoked by the EPO Opposition Division. It was held that, in view of the suspensive effect of the appeal that was lodged before the EPO Board of Appeal against that decision (Article 106(1) EPC), the revocation could not prevent a PI being granted on the basis of that patent.
The Brussels court of appeal has now declared this reasoning applicable to invalidity decisions issued by Belgian first instance courts. Lundbeck’s SPC for escitalopram was declared invalid by the Brussels commercial court in October 2011 in proceedings against the generic manufacturers Teva and Tiefenbacher. Lundbeck has in the meantime appealed this decision and has already obtained a partial reversal of the first instance decision. It now sought to enforce the same SPC against another generic manufacturer of escitalopram, Eurogenerics. Eurogenerics argued that the patent was not prima facie valid because it had been annulled at first instance. The Brussels court of appeal did not accept this defence and stated that, by analogy to the supreme court decision on Article 106(1) EPC, the SPC should be considered prima facie valid for the purpose of PI proceedings, given the pending appeal against the first instance nullity decision.
Read the decision (in French) here.
Head note: Philippe de Jong