Court of appeal of Paris, 21 March 2012, Novartis v. Mylan and Qualimed: imminent infringement and “clear the way”
The preliminary injunction granted by the court of appeal of Paris on 2 March 2012 in Novartis v. Mylan and Qualimed is interesting in two aspects:
1. it provides new guidance on the conditions for the infringement to be considered as imminent;
2. when assessing the likelihood of success of the invalidity grounds asserted by the defendants, it states that they could have cleared the way by bringing a nullity action before launching their products. To reach such result, not only the court of appeal reversed the first instance decision; it also took the opposite view of the English courts which decided that the corresponding patent/SPC was invalid.