Léon Dijkman has posted an informative paper on Bayer v. Richter, which I blogged about recently in a post I titled Bayer v. Richter: Worst CJEU Decision Ever? Here is a link to the paper, titled CJEU rules that repeal of provisional measure does not automatically create liability for wrongful enforcement, which is forthcoming in the Journal of Intellectual Property Law & Practice, and here is the abstract:
In its ruling in Bayer, the Court of Justice of the European Union (CJEU) found that denial of compensation to a provisionally enjoined party in case of later revocation of a patent may be allowable under Article 9(7) of Directive 2004/48/EC (the Enforcement Directive). The ruling has potentially far-reaching implications for European IP practice, which are discussed in this note.
The author holds out some hope that the decision will be limited to at-risk launch by generic drug companies, despite some broader statements in portions of the opinion. I hope he's right.
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