[Editor's note] Like most countries and regions in the world, The rulings of the Court of Justice of the European Union have important guiding significance and predictive value for understanding the legal norms of the European Union. Esabaril (ELZABURU) At the beginning of each year, typical cases of the Court of Justice of the European Union in the previous year are summarized and published, And a brief review of each case, In order to help customers and partners to understand the EU intellectual property norms. Given the importance of Chinese customers and partners, We try to publish the Chinese version of typical cases on a weekly basis, It is convenient for Chinese partners to learn the latest information in a timely manner.

　　 [background]

　　Bayer has a contraceptive patent in Hungary, It asked the court for a temporary injunction, Request pair Richter and Excltis Two companies took out injunctions, To prevent infringement of the said patent rights, Asked the court to block the sale of the controversial contraceptive in Hungary.

　　At the same time, Richter and Excltis The two companies filed an invalidation petition with the Hungarian Patent Office, Seek an annulment of the disputed patent.

　　The court first granted Bayer's request for a temporary injunction, requirement Richter and Excltis The companies are not allowed to release the drugs in question. however, The Hungarian Patent Office subsequently ruled that Bayer's patent was invalid, In accordance with this ruling, The court rejected Bayer's claim for damages.

　　After receiving the above verdict, The defendants are seeking compensation from Bayer for damages caused to their companies by the temporary injunction.

　　After review by the Hungarian court, Decided to suspend the proceedings, And asked the European Court of Justice (Court of Justice) Make a preliminary determination, clarify "Directive of the European Parliament and the European Commission on enforcement of intellectual property rights (The first 2004/48/EC No) " (Hereinafter referred to as "European Union regulation 2004/48/EC Number instruction" ) The first 9 (7) The scope of application of the article, specifically, As stipulated in the clause "Just compensation (appropriate compensation) " Concept of. The first 9 (7) Article provision: "By the act or omission of the applicant, Causing the temporary injunction measures to be revoked or invalidated, or, After the measure is approved, No infringement of intellectual property rights or infringement risk is found at last, The judiciary has the power to act upon the defendant's request, The applicant was awarded reasonable compensation for the losses caused to the defendant by the implementation of the above measures" .

　　 [conclusion]

　　The European Court of Justice held that, Notwithstanding approval "Just compensation" The premise of the request is, The act or omission of the applicant results in the withdrawal or termination of the temporary injunctive measure, Or after the measures are approved, it is not found that the disputed rights are infringed or there is infringement risk, but, It's not just one case, The courts of the member States can automatically or are obliged to ask the applicant to compensate the defendant for all the losses caused by the injunction. For that matter, The European Court of Justice stated that:

　　- Set up "Just compensation" The purpose of the regulation is, Compensatory cause "Unreasonable application" Additional costs and other damages incurred by the defendant as a result of the temporary injunction measures.

　　- "unreasonable" An application for interim injunction measures means, Delay taking the measure, It doesn't cause the owner "Irreparable loss" .

　　- and, When a defendant knows that there is a patent right that may impede the sale of his goods, Still decided to market its goods, For the patentee, No injunction shall be taken against the defendant for such conduct, May indeed cause "Irreparable damage" .

　　Therefore, European court of justice ruling, right "European Union regulation 2004/48/EC Number instruction" The first 9 (7) The article shall be understood in conjunction with the directive 3 (2) Provision of article, namely, Member states shall guarantee (This instruction) The first 9 The measures and methods prescribed in this Article shall not be abused, This means that, The courts of member States should take into account all the facts of the case, Determine whether there is abuse of the temporary injunction measures.

　　 [comment]

　　Out of the blue, According to the ruling of the European Court of Justice in this case, It is still difficult to pinpoint the circumstances, The petition for a temporary injunction is "unreasonable" . As to what may constitute an unreasonable application for a temporary injunction (And the subsequent approval of the defendant "Just compensation" Apply for) reason, The European Court's interpretation seems to exclude cases where the patent on which the temporary injunction was based is subsequently invalidated.

　　The European Court of Justice's interpretation seems to favour the right holder. In fact, The European Court of Justice in this ruling No 65 The reason given in the paragraph is: "If the ruling goes the other way, ... , May discourage the disputed patentee from seeking "European Union regulation 2004/48/EC Number instruction" The first 9 Article provides measures to protect the will, This is contrary to the legislative purpose of the regulation——Ensure a high level of protection for intellectual property" .

　　however, In addition to the above position of the European Court of Justice, We should also recognize that, Improper use of patent rights——In many cases, invalid patents——As a means of exerting pressure and coercion on competitors, Has become the common practice of some enterprises in the EU market.

　　No doubt, Such behaviour should alarm the competent authorities, And punish.

　　compile: Liu Dan, Esabarry Legal Counsel　　source: Esabaril (ELZABURU) Intellectual property rights