Better Protection for Patentees: Preliminary Injunctions in the EU for Pharmaceutical Patent Matters

Abstract

Hogan Lovells International LLP, Kennedydamm 24, 40476 Dusseldorf, Germany *Author for correspondence: Tel.: +49 211 13 680 E-mail: andreas.vonfalck@ hoganlovells.com For many years, it was common ground within the patent community in the EU that it is very difficult for owners of pharmaceutical patents to obtain effective protection by way of a preliminary injunction (PI) against patent infringements by generic pharmaceutical companies. Where generic market entry is imminent, it is essential for the patentee to protect its position by way of effective legal and procedural remedies, particularly where the patent (or SPC) term is coming to an end and lengthy main proceedings will not have the desired effect. Early launches of generic medicines often lead to an immediate decrease in price levels that cannot usually be fully recovered through damages or through a later (permanent) injunction. While the threshold for obtaining PIs is still high, there is recent case law from various jurisdictions in the EU, in particular from the UK and Germany, indicating that owners of pharmaceutical patents may be in a better position when it comes to protecting their patent rights against unlawful generic competition, in particular towards the end of the patent term.