On 5 January 2012, the Belgian Supreme Court (Hof van Cassatie / Cour de Cassation) upheld an earlier judgment of the Brussels Court of Appeal, confirming that a patent holder can rely on its patent for obtaining an interim injunction whilst the proceedings to invalidate the patent are still pending.
Mylan BVBA (“Mylan”) v. Novartis AG (“Novartis”) dates back to the beginning of 2010 when Novartis brought an action for a preliminary injunction against Mylan’s intended marketing of a generic sustained release formulation of fluvastatin patented by Novartis. At issue was the question whether the prima facie validity of the patent at issue can be upheld whilst an appeal against the revocation of the patent by the Opposition Division of the EPO is pending. The Court of Appeal had reversed the judgment of the Brussels Commercial Court in this respect and answered positively (See, this Newsletter, Volume 2010, No. 11, p. 6, available at www.vbb.com).
The Supreme Court followed this analysis by ruling that a granted (European) patent is presumed to be valid for the purpose of obtaining an interim injunction as long as there is no final decision on the invalidation of the patent. The prima facie validity was not affected by the decision of the Opposition Division of the EPO to revoke Novartis’ patent in its entirety, given that (i) Novartis lodged an appeal against this decision before the Technical Board of Appeal of the EPO; (ii) the appeal is still pending; and (iii) the pending appeal suspends the effects of the decision under appeal (Article 106(1) of the European Patent Convention).
The Belgian case law had so far been unsettled in relation to the prima facie validity of a patent that had been invalidated by the Opposition Division of the EPO, pending the appeal against this decision. With this judgment, the Supreme Court seems to support the position that the prima facie validity cannot be contested based on a suspended invalidation of the patent at European level.
