AG weighs in on Bayer patent case
An advocate general has advised the Court of Justice of the European Union (CJEU) on damages in a case between Bayer and pharmaceutical companies Richter and Exeltis.
In an opinion published earlier today, April 11, Giovanni Pitruzzella said it is for each member state to determine the law governing a party’s right to compensation for damage “suffered as a result of the adoption of provisional measures” to prohibit the sale of a particular product.
In 2010 Richter and Exeltis began marketing a product and asked the Hungarian Intellectual Property Office for a declaration that their contraceptive products did not infringe a patent owned by Bayer.
They also asked for revocation of the patent.
The patent (EU number 22,72,07) covered a pharmaceutical product containing a contraceptive active substance.
In 2010, Bayer asked a court to prohibit Richter and Exeltis from placing the products on the market. Soon after in 2011, Bayer brought infringement proceedings against Richter and Exeltis.
While waiting for a final decision to be reached on the validity of the patent, a court prohibited Richter and Exeltis from selling their products in the interim.
After the patent was found to be invaid, Richter and Exeltis requested that Bayer be ordered to pay damages caused by the provisional measures set out by the court.
The Budapest-Capital Court had asked the AG if it is up to the individual EU member state to define its own rules in a scenario where an entity (Richter and Exeltis) asks to be compensated for damages caused by provisional measures of patent litigation when the patent was subsequently invalidated by a judge.
It also asked the court to determine if Bayer is liable for the damage, providing that Richter and Exeltis acted in “accordance with what could be expected of any person in the given situation”.
In today’s opinion, Pitruzzella said “there is no need to compensate a party for the damage” if it failed to comply with the obligation to act “as it can generally be expected of any person in the given situation to avoid harm”.
Bayer previously argued that Richter and Exeltis’ injury was self-inflicted, so therefore they are not entitled to compensation.
It said they “intentionally and unlawfully introduced counterfeit goods into the market long before the patent was annulled”.
“As manufacturers of generic pharmaceuticals, they knew that the applicant had a patent, and therefore, in order to avoid prejudice, they would have had to pre-sue the patent in the meantime before commencing sale of the patented product,” Bayer said.
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