Liability for Ungrounded Preliminary Injunctions

Extract

Industrial Property Code, Art. 338-G(3); Civil Code, Art. 483(2) – Validity of SPC

Headnotes by the Editorial Office

1. Liability within the framework of the Industrial Property Code has to be read in light of the general principles of tort law enshrined in the Civil Code, according to which strict liability exists only whenever the law specifies such. Therefore, liability for a preliminary injunction requires evidence regarding intent or negligence of the patent holder that applied for it since Art. 338-G(3) of the IP Code does not mention strict liability.

2. The burden of proving intent or negligence lies with the injured party.

Lisbon Court of Appeal, decision of 19 February 2019 – 236/16.2YHLSB-7

Summary

I – As is apparent from the judgments of the Court of Justice of the European Union (CJEU) in Cases C-207/03, C-252/3, C-617/12, C-555/13, the holder of a patent and of a Supplementary Certificate of Protection should not be able to benefit from a period of exclusivity of more than 15 years from the first date of the marketing authorization granted in the European Economic Area (EEA) for the medicinal product concerned.