BE – GSK Biologicals v. Novartis
Posted: December 4th, 2009
Glaxo Smith Kline Biologicals v. Novartis, appeal in descriptive seizure proceedings, Brussels Court of Appeal, Belgium, 4 December 2009, Docket No. 2009/KR/269
Disclosure of confidential information in annexes of the report of a descriptive seizure harms the legitimate interest of GSK, since the information is irrelevant to establish infringement.
of use of irrelevant information in the framework of proceedings other
than the ones aiming at establishing the infringement, notably in the
framework of amending the patent claims, was serious, and likely to harm
the legitimate interests of GSK. Suppression of all annexes is therefore justified.
Read the judgment (in French) here.
An expert appointed in the framework of descriptive seizure proceedings applied for by Novartis had described the alleged infringing activities in his report to the extent as relevant in the light of the invoked patent but had also annexed to his report the quasi-totality of the confidential documents received by GSK during the descriptive operations. GSK filed proceedings against Novartis and the expert, requesting the removal of the confidential annexes and an order not to use the information contained therein, arguing that a substantial part of the information appearing in the annexes was irrelevant to assess the alleged infringement.
The Court considers that the disclosure of irrelevant confidential information harms the legitimate interests of GSK, in particular as regards the protection of confidential information. If it is true that the confidentiality of certain information cannot prevent the applicant from establishing the infringement via descriptive seizure proceedings, it is up to the expert to ensure that the confidential information of the alleged infringer is protected and to avoid the disclosure of confidential information which is not relevant to establish the infringement, in accordance with Article 1369bis/6 Code of Civil Procedure.
The Court considers that in casu, the risk of use of irrelevant information in the framework of proceedings other than the ones aiming at establishing the infringement, notably in the framework of amending the patent claims, was serious, likely to harm the legitimate interests of GSK and justifies the suppression of all the annexes to the report. The Court also orders Novartis not to use the information under any form, except insofar as it appears in the descriptive part of the report, subject to a substantial civil penalty.
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