Posted: November 26th, 2009
After having initially filed an application for an inter partes injunction prohibiting the wholesaler Pharma Change Aps to sell or use a pharmaceutical containing a specific API (Active Pharmaceutical Ingredient), if manufactured pursuant to a certain Lundbeck process patent, Lundbeck subsequently filed an application for an ex parte injunction. Actavis A/S intervened, claiming that an injunction would also prevent its distribution of its generic version of that same pharmaceutical.
The enforcement court first turned down the application for a temporary (i.e. until such time as an inter partes application could be heard) ex parte injunction, stating that such a remedy lacks legal basis in the Danish Administration of Justice Act. Secondly, even though another enforcement court had ruled in favor of Lundbeck in a similar case, the court decided that that ruling did not have legal force in the present case. And thirdly, the court ruled that in order for the court to grant an ex parte injunction, a clear infringement of Lundbeck’s patent rights must have been shown. The court did not find that Lundbeck had lifted the burden of evidence sufficiently and so the application for an ex parte injunction was turned down. The decision is under appeal and dates have been set for an inter partes hearing of the application for an injunction.