Key takeaways from this Pharma forum 2021 session include:
-Traditionally in Dutch preliminary injunction cases, both infringement and validity/invalidity are considered, leading these trials to be dubbed "mini-trials on the merits". In recent years, however, other factors (like balance of convenience) have made their way into preliminary injunction assessments.
-Belgian case law on assessing European patent validity in preliminary injunction cases has evolved from a presumption of validity, which was almost impossible to refute, to an actual assessment of validity. This new approach factors in all circumstances of the case, with an emphasis on case law in other jurisdictions that relates to parallel parts of the same European patent. A pending referral before the CJEU might change this approach.
-Due to the bifurcated system involved, German preliminary injunction courts are generally reluctant to assess the validity of alleged patents in preliminary proceedings. Instead, they tend to rely on the guidance of the technical courts in charge of assessing the invalidity of arguments before granting preliminary injunctions. The pending referral of the Munich court by the CJEU might affect this approach, however.
-For the UK, it is important to focus on the facts of the case and evidence should be directed to the relevant period.
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