Hospira UK Limited and Hospira Enterprises B.V. v. Aventis Pharma S.A., District Court of Stockholm, 7 October 2011, Docket No. T 19169-10
The Hospira companies held the marketing authorization for and imported the pharmaceutical Docetaxel Hospira for Sweden. Aventis Pharam S.A. held three EP patents for Sweden and had in other jurisdictions claimed that Docetaxel Hospira infringed the EP patents (and in some jurisdictions requested and been granted ex parte preliminary injunctions). In preparation for the launch of the pharmaceutical in Sweden, the Hospira companies requested that the District Court of Stockholm should invalidate the patents for Sweden. Aventis first denied the request, referring inter alia to on-going settlement negotiations, but eventually admitted that the patents be invalidated. The only contentious issue for the Court to decide was therefore whether the Hospira companies should be reimbursed for its legal costs.
In its reasoning, the Court stated that a patent can only be invalidated by a court decision and that someone requesting an invalidity order therefore was forced to commence court proceedings irrespective of the patent holder's position. Thus it could not be considered an "unnecessary trial" for which a winning party may not be reimbursed for its legal costs under the Swedish Code of Judicial Procedure, irrespective of the fact that the writ of summons had been submitted without prior correspondence with the patent holder. Aventis was therefore order to reimburse the Hospira companies' "reasonable" costs, which was less than half of the total costs claim. The Court did not take any particular notice of Aventis' argument that it could have agreed to voluntarily cancel the patent which can be done by application to the Swedish Patent and Registration Office).
Read the judgment (in Swedish) here.
Head note: Erik Ficks