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NL – Pharmathen Global v. Novartis / Supreme Court

22 May 2024

Pharmathen Global v. Novartis A.G., Supreme Court of The Netherlands, 17 May 2024, Case no. ECLI:NL:HR:2024:728

In these summary proceedings, patent holder Novartis has claimed various cross-border remedies against Pharmathen Global for infringement of European patent EP 2 377 519 B1 (hereinafter EP 519 or the patent), a method patent for the manufacture of octreotide microacetate particles, used in injectables for the treatment of certain forms of cancer.

The preliminary relief judge has imposed an injunction on Pharmathen Global to act unlawfully, an (in)direct infringement ban in the Netherlands and the other countries in which EP 519 is in force and ordered it to instruct third parties, including its subsidiary Pharmathen Greece, to cease and desist from patent infringement.

The court of appeal annulled the judgment to the extent that Pharmathen Global was prohibited from acting unlawfully and was ordered to instruct Pharmathen Greece to cease the infringement of the Greek part of EP 519, which claims were subsequently rejected. The court of appeal affirmed the remainder of the judgment, including the injunction, which also included Pharmathen Global’s leadership of infringing actions by Pharmathen Greece.

In part 1 of the main cassation appeal, Pharmathen Global complains that the court violated the boundaries of the legal dispute and failed to recognize that ‘directing’ infringing actions does not itself constitute a patent infringement. Part 2 of the main cassation appeal addresses various legal and motivational complaints against the judgment that Pharmathen’s method infringes by equivalence.

The Supreme Court follows the advice of the Advocate General and denies the appeal without further reasoning.

A copy of the decision (in Dutch) can be read here.