Sandoz A/S v. ViiV Healthcare UK Limited, Patent and Market Court of Appeal, Sweden, 30 June 2017, Docket No. PMÖ 3565-17

Sandoz requested that the preliminary injunction barring its pharmaceutical products Abacavir/Limavudine Sandoz 600 mg/300 mg from being marketed and sold on the Swedish market be vacated. The Patent and Market Court of Appeal overturned the Patent and Market Court’s decision, rejecting ViiV Healthcare’s request for a preliminary injunction. The reason given by the Court of Appeal for its decision was that questions concerning the relevant patent and the subsequent SPCs, patent claim amendment, novelty and inventive step in this case were too uncertain to be answered correctly given the scope of the court’s overall assessment of whether a preliminary injunction should be granted.

The Court of Appeal firstly reiterated the prerequisites for granting a preliminary injunction, namely that the plaintiff needs to shows probable cause for infringement, and that it can be reasonably assumed that, by continuing the infringement, the defendant will diminish the value of the patent. The Court of Appeal then underlined the fact that there is a presumption that the patent is valid. However, this presumption can of course be rebutted if the defendant produces evidence against patentability, such as documents not considered by the patent office.
Moreover, the Court of Appeal found that there is nothing to prevent a plaintiff basing its claim for a preliminary injunction on a patent that is subject to a patent claim amendment.

In conclusion, and as mentioned earlier, the Court of Appeal found that, given the overall assessment made by the court when determining whether to grant a preliminary injunction and due to the uncertainties regarding relevant patent’s patent claim amendment, there was no probable cause for infringement. The Court of Appeal’s decision cannot be appealed.

The uncertain nature of the circumstances of the case make it difficult to assess whether this judgment will have any effect on the overall likelihood of a patent holder obtaining a preliminary injunction pending the outcome of an infringement case.

A copy (in Swedish) of the Court of Appeal’s judgment can be found here.

Summary: Fredrik Nilsson, Roschier