Posted: December 16th, 2021
Bayer Healthcare LLC v. Teva B.V. et al. PI Judge District Court The Hague, the Netherlands, 10 December 2021, Case no. ECLI:NL:RBDHA:2021:13616
Third generation divisional. Foreign proceedings on the mertits in which parts of the were invalidated do not take away the fact that the Dutch PI judge should reach its own conclusions.
“At the same time, the fact that the Dutch judge must form its own opinion does not detract from the fact that the same or comparable invalidity arguments were taken in both the German and the English proceedings on the merits as in the present proceedings and that these are authoritative foreign courts. That is why those decisions do play a role in the question of the reasonable chance that claim 12 will be found invalid in proceedings on the merits in this country.
“This certainly applies to the decision of the English court, because of the full judgment of 8 October 2021 (see 2.20.2), from which it follows that and why on disputed points that are also part of these summary proceedings and on the basis of documents that are also submitted in these proceedings, the English Judge has decided to the disadvantage of Bayer. Under those circumstances, the reasonable chance that the Dutch court will follow a similar line in proceedings on the merits and thus render claim 12 null and void can only be removed by convincing arguments from Bayer. However, as will be discussed below, Bayer’s arguments are not convincing.”
The preliminary relief judge concludes that there is a good chance that the Dutch part of claim 12 of EP 255 will be found invalid in proceedings on the merits and denies the injunction.
A copy of the judgment can be read here.