Preliminary injunction against the veterinary drug Forceris
By a ruling of 3 January 2020, Bayer has obtained a preliminary injunction from the Maritime and Commercial High Court against the sale, use and possession of Ceva's veterinary drug Forceris. Plesner represented Bayer in the trial.
The case concerned patent protection of a combination preparation for the concurrent prevention of coccidiosis (such as diarrhoea) and iron deficiency in piglets.
The Maritime and Commercial High Court found that the patentee, Bayer, had proved that the veterinary drug Forceris, marketed and sold by the Ceva group in France, infringed Bayer's patent rights.
Forceris is administered by injection, and Ceva claimed that Bayer's combination preparation patent did not comprise injection preparations but was limited to formulations for oral administration. However, the Court agreed with Bayer that Bayer's patent claim was a product claim protecting a formulation not limited to a specific administration method. This meant that the claim was not limited to oral formulations only. The Court noted in this respect that the wording of the patent claim was clear and unambiguous. It could not be concluded from the patent description that the Patent-in-suit is limited to oral administration. The Court stated that the description only mentions examples of oral administration, but that these are indeed just examples, and the description does not rule out the possibility of administering the formulation by injection.
The patent does not comprise any examples of administering the formulation by injection, however, the Court noted in this connection that the possibility of a formulation for injection is plausible.
During the trial, it was also disputed whether Bayer's patent was valid as granted. The Court found that Bayer had lifted its burden of proof that it is valid. Regarding this issue, the Court stated that the EPO (the European Patent Office) had granted Bayer's patent and it had been examined by the EPO's Opposition Division as well. On this basis, there is a strong presumption of validity regarding the Patent-in-suit. Ceva did not prove that this presumption was wrong. Bayer had claimed that the product had two advantages. The Court expressed in relation to one of these advantages that it concurred with the Opposition Division in that the patented invention was not obvious to the person skilled in the art. The Court stated that the Opposition Division had also found that the patent was inventive in relation to the other advantage, however, the Court did not rule on this issue and mainly noted that the Court had already found that Bayer had rendered its right probable.
On the above basis, the Maritime and Commercial High Court granted an injunction against Ceva's piglet drug (Forceris®) and ordered Ceva to recall the Forceris product immediately from all customers and recipients and that these had to recall the product from their buyers as well. Ceva also had to immediately deregister Forceris from the Danish price register (www.medicinpriser.dk).
The decision can be found at the Maritime and Commercial High Court’s website (in Danish)