EPLAW Patent Blog

DK - Power Stow v. RASN and others

Power Stow A/S v. RASN A/S, John Bean Technology Corporation and SAS Denmark-Norway-Sweden, Maritime and Commercial Court, Denmark, 21 May 2010, Case No. T-5-08

The court ruled that the claims of the patent-in-suit must be read in light of the prosecution file of the application that led to the patent-in-suit. The patent-in-suit was granted after comprehensive communications with the Danish PTO which in the opinion of the court must entail that the claim language is precise and clearly distinguished from the prior art. Against the background, the court found that the claims must be construed narrowly and that as a result the protective scope conferred on the patentee could only comprise that which was not already known in the prior art.

A summary of the case in English can be found below.

DK - H. Lundbeck A/S v. Pharma Change ApS - Actavis A/S entered as independent party

H. Lundbeck A/S v. Pharma Change ApS, bailiff's court (enforcement court) Elsinore, Denmark, 16 April 2010, Docket no. 9921/2009

A Danish bailiff's court granted Lundbeck's application for an interim injunction against the wholesaler Pharma Change ApS, selling and distributing a generic escitalopram product manufactured by Dr. Reddy's Laboratories in India.

Having obtained in the summer of 2009 an interlocutory injunction against the largest Danish wholesaler, Nomeco A/S, H. Lundbeck A/S filed an application for an interlocutory injunction against the new and independent wholesaler, Pharma Change ApS, which carried as its only prescription pharmaceutical in its portfolio a generic escitalopram pharmaceutical.

DK - Linco Food Systems v. Meyn Food Processing Technology

Linco Food Systems A/S v. Meyn Food Processing Technology B.V., Supreme Court, Copenhagen, Denmark, 3 December 2009, Docket No. 313/2005

The Danish Supreme Court dismissed Meyn's claim against Linco Food Systems and declared Meyn's patent invalid.

Meyn was granted a patent on a device which cleanses out the intestines of poultry during slaughtering.The enforcement court in Denmark granted an injunction based on the aforementioned patent against a Danish company (Linco Food Systems) which manufactured a similar device. The injunction was upheld on appeal. In the confirmatory action the High Court ruled in favor of the patentee, prohibiting the Danish company from producing and selling the device. In addition, the Danish company was ordered to compensate the patentee financially.

SE - Seeking Preliminary Injunction for Pharmaceutical Patent Infringement in Sweden

Seeking Preliminary Injunction for Pharmaceutical Patent Infringement in Sweden - A Comparative Law Analysis of Pharmaceutical Patent Protection and Injunction Proceedings in the Nordic Countries

By Erik Ficks, Roschier

"2009 has brought about significant changes to the Swedish pharmaceutical market as a consequence of the dismantling of the state pharmacy monopoly. As of 1 July 2009, parties other than the Swedish state are permitted to establish pharmacies. This increased activity creates an increased need for patent holders to safeguard their rights, primarily by preliminary injunctions. Coincidentally, due to the delayed implementation of the Enforcement Directive (also known as IPRED), it became possible for Swedish courts to issue preliminary injunctions against imminent threats of patent infringement as of 1 April 2009.

"In order to present how the Swedish courts may apply this new provision a comparison is made with cases where such preliminary injunctions have been granted in Denmark, Norway and Finland."

Read the complete contribution here.

DK - Lundbeck v. Pharma Change & Actavis

Lundbeck a/S vs. Pharma Change Aps & Actavis A/S., Danish Enforcement Court of Helsingor, 26 November 2009, Docket No. FS FO-9921/2009, with thanks to Anders Valentin, Horten

After having initially filed an application for an inter partes injunction prohibiting the wholesaler Pharma Change Aps to sell or use a pharmaceutical containing a specific API (Active Pharmaceutical Ingredient), if manufactured pursuant to a certain Lundbeck process patent, Lundbeck subsequently filed an application for an ex parte injunction. Actavis A/S intervened, claiming that an injunction would also prevent its distribution of its generic version of that same pharmaceutical.

The enforcement court first turned down the application for a temporary (i.e. until such time as an inter partes application could be heard) ex parte injunction, stating that such  a remedy lacks legal basis in the Danish Administration of Justice Act. Secondly, even though another enforcement court had ruled in favor of Lundbeck in a similar case, the court decided that that ruling did not have legal force in the present case. And thirdly, the court ruled that in order for the court to grant an ex parte injunction, a clear infringement of Lundbeck’s patent rights must have been shown. The court did not find that Lundbeck had lifted the burden of evidence sufficiently and so the application for an ex parte injunction was turned down. The decision is under appeal and dates have been set for an inter partes hearing of the application for an injunction.

 

DK - Novartis v. Teva Denmark (Valsartan)

Novartis AG and Novartis Healthcare A/S v. Teva Denmark A/S (Valsartan), Maritime and Commercial Court, Denmark, 29 September 2009, Docket No. T-32-08

Teva Denmark applied for a marketing authorization for a generic product which would (admittedly)  infringe upon the Novartis process patent if marketed. Novartis filed an application for an injunction prohibiting Teva from obtaining the authorization. Teva argued that the only purpose of the Danish application was to use Denmark as a reference country under the decentralized procedure. The main issue in the present case was whether applying for a marketing authorization was sufficient evidence that Teva would undertake the actions that Novartis  sought prohibited cf. § 642, no. 2 in the Danish Administration of Justice Act. The enforcement court refused to grant an injunction as it found that applying for an authorization in itself did not constitute sufficient evidence that Teva would take steps to infringe the Novartis patent rights. The decision was appealed, and on appeal the application was granted.

In the confirmatory action before the Maritime and Commercial Court, the court stated that it should be possible for competitors to prepare marketing of their products before the patent expires and due to slow processing times for granting marketing authorization it was necessary that Teva filed an application at an early state. This, in combination with the fact that Teva had declared it would respect Novartis’ patent, meant that there was no evidence that Teva would infringe Novartis' patent rights. On these grounds, The Maritime and Commercial Court declined to grant an injunction, therefore adopting the decision of the enforcement court.