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9 September 2021MedtechMuireann Bolger

English High Court grants expedited trial in cochlea ‘injunction gap’ dispute

Advanced Biologics (AB) has managed to convince the English High Court to expedite a patent infringement and validation suit it is embroiled in with German rival Med-El.

AB has petitioned the court’s to either invalidate Med-El’s European patent UK number 3,138,605B or to establish that AB’s cochlea implant device does not infringe.

Med-El has counterclaimed, claiming that the arrangement of four rotatable magnets in AB’s device infringed on its ‘605 patent.

AB wanted to expedite the UK proceedings to prevent a potential early injunction of its cochlea implant in parallel litigation in a German court, which AB argued could severely impact its business in the UK.

In a judgment handed down on August 31, the English patents court granted the expedition of the trial to February 2022.

Initially, AB sought to expedite the trial for a deadline in December 2021, but this would have required a “very compressed timetable”, according to Mellor.

UK impact

Med-El’s infringement case against AB, being heard at the Mannheim Regional Court, sought a preliminary injunction barring AB from selling its implant device, the Hi-Res 3D, which has been available on the UK market since 2018.

In its argument that the case should be expedited, AB had to prove to the UK court that the German injunction would have an effect on the UK market.

Justice Mellor noted that “many cases where the effect of a German injunction on the UK market is slight or even non-existent”. However, AB’s case was unique in that an injunction over their flagship product may raise concerns in the UK market of which AB holds a 20% market share of cochlea implants, the judgment claims.

Med-El argued that all of AB’s fears about the effect of a German injunction on the UK market were “exaggerated and/or not objectively justifiable”

Mellor said: “Even if I assume that no audiologists in the UK would become aware of the German infringement action, I find it very difficult to understand how UK audiologists would not hear very quickly that the 3D device was off the market in the major German market.

“Many would then speculate whether the same was going to happen in the UK. This would lead both audiologists and patients to doubt whether it was advisable to have a 3D device implanted and to discussions to that effect on the blogs.”

Expedited cases

Expanding on the UK court’s handling of expedited cases, Mellor referenced a judgment he made in Abbot Laboratories v Dexcom from August this year, a similar case in which the claimant sought to expedite a German trial by appealing to the English court.

Expedition was sought to avoid the problems caused by the “injunction gap”—a concept in the German legal system in which months can pass between the first instance injunction and the decision of the validity of the patent.

Expedition cases have been considered “many times” in recent memory at the English High Court, according to Mellor. Specifically, Mellor referenced Nicoventures Trading Limited v Philip Morris & or as another recent example of expedition rulings at the court in order to avoid the injunction gap.

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5 November 2018   A US district court has ordered Australia-based Cochlear to pay $268 million in damages to the Alfred E Mann Foundation for Scientific Research and Advanced Bionics.
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19 August 2020   Hearing implant manufacturer Cochlear has agreed to pay an additional $75 million to settle a patent infringement case if an original $268 million damages bill is upheld by the US Supreme Court.

More on this story

Americas
5 November 2018   A US district court has ordered Australia-based Cochlear to pay $268 million in damages to the Alfred E Mann Foundation for Scientific Research and Advanced Bionics.
Medtech
19 August 2020   Hearing implant manufacturer Cochlear has agreed to pay an additional $75 million to settle a patent infringement case if an original $268 million damages bill is upheld by the US Supreme Court.

More on this story

Americas
5 November 2018   A US district court has ordered Australia-based Cochlear to pay $268 million in damages to the Alfred E Mann Foundation for Scientific Research and Advanced Bionics.
Medtech
19 August 2020   Hearing implant manufacturer Cochlear has agreed to pay an additional $75 million to settle a patent infringement case if an original $268 million damages bill is upheld by the US Supreme Court.