The Olanzapine Patent Dispute: German Court Grants a Preliminary Injunction on a Patent Invalidated by the First-Instance Federal Patent Court

Abstract

The recent olanzapine case has caused a furor in Germany. For the first time in history, a German court allowed a preliminary injunction based on a patent that was found invalid by the first-instance Federal Patent Court. The olanzapine patent (DE 691 12 895), owned by Eli Lilly, was attacked by several generics companies filing invalidation complaints with the Federal Patent Court. By decision 3Ni 21/04 (EU) combined with 3Ni 41/06 (EU), the Court declared the olanzapine patent invalid for lack of novelty. Nevertheless, the patentee filed a request for a preliminary injunction inter alia with the first-instance Civil Court in Düsseldorf, which rejected the request; surprisingly, however, the second-instance Appeal Court granted the preliminary injunction. This is all the more noteworthy in that the infringement court of second instance, composed of “non-technical” judges, found the underlying patent to be valid, contrary to the opinion of the Federal Patent Court when technical judges had decided the case.