Novartis is successful in revocation action

The Danish Maritime and Commercial High Court recently found for Novartis in a case in which Orifarm Generics had claimed revocation of a preliminary injunction due to a subsequent event.

The Danish Maritime and Commercial High Court granted the preliminary injunction on 12 August 2014 based on a patent and two unexamined utility models identical to the patent. Main proceedings were instituted and are still pending. Orifarm claimed, among other things, that the patent-in-suit and the two utility models are invalid due to the lack of basis.

The EPO Opposition Division subsequently found the patent-in-suit invalid due to the lack of basis. Orifarm then instituted new proceedings for revocation of the preliminary injunction before the Danish Maritime and Commercial High Court under section 426 of the Danish Administration of Justice Act. Novartis had appealed the EPO Opposition Division's ruling, which has suspensive effect under Article 106 of the European Patent Convention, but Orifarm claimed that under section 426(2)(i) of the Danish Administration of Justice Act a preliminary injunction can, and should generally, be revoked if the conditions for granting the injunction are no longer met.  

In accordance with Novartis' claims the Danish Maritime and Commercial High Court found that it was not the legislator's intention with the current  wording of section 426(2)(i) of the Danish Administration of Justice Act to open up for general access to having assessed whether the injunction conditions in section 413 of the Danish Administration of Justice Act are still met. At the same time, the Court found that this does not prevent the Court from being requested to assess whether, in special situations, subsequent circumstances could occur which entail that an injunction that has been granted is to be revoked.  

The Danish Maritime and Commercial Court then emphasised that the patent-in-suit should still be considered valid because Novartis had appealed the ruling made by the EPO Opposition Division with suspensive effect and that both the patent and the two patents-in-suit are still registered with the Danish Patent and Trademark Office. On this background the Court found that there were no such circumstances that might lead to a revocation of the injunction.

Read the decision (in Danish)

Plesner assisted Novartis in the case. The main proceedings that were instituted as a consequence of the granting of the preliminary injunction are scheduled to take place before the Danish Maritime and Commercial High Court in late June 2016.

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