The Düsseldorf Appeal Court sets new standards in enforcement of patents of pharmaceutical companies against generic manufacturers by granting a preliminary injunction although the patent has been invalidated in first instance by the Federal Patent Court, in Germany the exclusive court having jurisdiction in patent validity disputes.
The case concerns a patent of Eli Lilly (EP 0 454 436, for Lilly’s product Zyprexa) which was declared invalid by the Federal Patent Court in first instance by decision of 4 June 2007. Eli Lilly filed an appeal against this decision to the Federal Supreme Court. After the first instance court decision of the Federal Patent Court generic companies started to distribute generic products falling under the Eli Lilly patent in Germany.
Attempts of Eli Lilly to stop the generic manufacturers by way of preliminary injunction failed before the infringement courts in Düsseldorf and Hamburg in first instance. However, the Appeal Court in Düsseldorf ruled differently and granted Eli Lilly a preliminary injunction against a generic manufacturer, Stada. Following a comprehensive oral hearing with experts and evidence the Appeal Court concluded that the invalidity decision by the Federal Patent Court is unjustified and it ordered an injunction for the remaining term of the Eli Lilly patent.
The decision of the Düsseldorf Appeal Court clearly is a significant support for original manufacturers in their fight against generic companies because it shows that the infringement court in Düsseldorf is prepared to overrule decisions of the Federal Patent Court on validity in preliminary injunction procedures. This means for generic companies that despite a victory on validity at first instance before the Federal Patent Court in Germany patentees might still stop them bringing their generic products on the German market.
The full text of the decision will be available in approx. 7-14 days. Will post as soon as the decision in full text is available.