Compensation for a Wrongful Enforcement of a Preliminary Injunction under the Enforcement Directive (2004/48/EC)

摘要

This article explores legal mechanisms for compensating a wrongful enforcement of a preliminary injunction under the Enforcement Directive 2004/48/EC. Special focus is given to the recent judgment of the Court of Justice of the European Union in the case of Bayer Pharma of 12 September 2019. This article argues that the test proposed by the Court of Justice in national cases for compensating for a wrongful enforcement is incorrect in the view of art.9(7) of Directive 2004/48/EC. Despite art.9(7) of Directive 2004/48/EC, which strikes a balance of competing interests of a potential infringer and the intellectual property right holder, the Court of Justice held that, when the patent was ultimately invalidated, it does not automatically follow that the preliminary injunction was unfounded. As for specific issues, this article, notably, discusses whether the test for compensating a wrongful enforcement takes into account an abuse of a preliminary injunction and the behaviour of the defendant who launched a product without first challenging the patent. This article argues that it would be contrary to the aim of Directive 2004/48/EC if the compensation of defendants could be routinely refused when they do not wait for the invalidation of the injuncted patent. Otherwise this would encourage the misuse of preliminary injunctions. Finally, this article questions the applicability of national correction instruments to assessing of damage resulting from a wrongful enforcement of a preliminary injunction, implied in the case law of the Court of Justice.