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EPLAW – Knowledge seminar – Bayer vs Richter: A support for innovation or a set back for justice?

19 Feb 2021

Yesterday, EPLAW hosted the third session of its succesful knowledge webinars series. In this webinar an international panel of practitioners moderated by Willem Hoyng (HOYNG ROKH MONEGIER) discussed CJEU’s controversial Bayer (CJEU C-688/17) judgment and its potential impact on patent litigation in Europe.

In particular, the following questions were debated:

  1. Is Bayer vs Richter a support for innovation or an unwanted deviation of the prevailing (case)law in Europe?
  2. Is the ruling applicable to all decisions which are enforced by the IP holder against the defendant as long as there is no final decision in proceedings on the merit?
  3. It is clear that “appropriate compensation” has to be interpreted the same way throughout the EU. Whit is its content, scope and method for applying?
  4. Does consideration 64 (52) mean that statutory provisions which call for strict liability are not in conformity with the Enforcement Directive?
  5. Is irreparable harm a EU Uniform standard or can different EU countries give a different interpretation? What is irreparable harm?
  6. Is “abuse” an EU uniform standard or can the Member States give it a different meaning?
  7. What is – if appropriate – appropriate compensation?
  8. Would a practice in which a court would only grant provisional measures if the applicant gives a cross undertaking in damages be contrary to Bayer-Richter?
  9. In view of the judgment:
    1. Should a court only grant ex parte measures in exceptional cases so urgent that a hearing is not possible and should the patentee be obliged in his request for such relief to give full disclosure with respect to everything he knows which is relevant as to the validity of the patent?
    2. Should a court not grant provisional measures without considering an invalidity defence and not grant such measures if there is a reasonable (serious) possibility that the patent will be revoked or invalidated?


Steven Cattoor – Hoyng ROKH Monegier (BE)
Giovanni Guglielmetti – Bonelli Erede Pappalardo Studio Legale (IT)
Tanguy de Haan – NautaDutilh (BE)
Peter Ling – Lenz & Staehelin (CH)
Mark van Gardingen – Brinkhof (NL)
Philippe Compolini – Stibbe (BE)
Tankred Thiem – LGV Avvocati (IT)
Frederic Chevallier – Herbert Smith Freehills (FR)
Alexander Haertel – Bardehle Pagenberg (DE)
Marleen H.J. van den Horst – BarentKrans (NL)