Preliminary Injunctions and Costs

A couple of months ago I noted with dismay the CJEU's recent decision in Bayer v. Richter, which appears to exempt patent owners from having to compensate defendants from having been excluded from the market during the pendency of a preliminary injunction that is subsequently lifted after the patent is found to be invalid or not infringed.  (See posts here and here.)   On a related--and from a policy perspective, sounder--note is a recent decision of the Danish High Court, as reported by Anders Valentin on the Kluwer Patent Blog a few weeks back.  The article, titled "Danish High Court radically changes its course on costs awards," reports a decision in which a preliminary injunction was granted but later vacated, and the defendant sought an award of costs.  According to the author, in previous cases Danish costs awards were "typically . . .  only a fraction of the costs actually incurred."  In this case, however, the Maritime and Commercial High Court awarded "legal costs in an amount reflecting those generally applicable in  the IP practice area as well as substantial and suitable amount of the fair costs actually incurred," as well as costs for expert statements and assistance from a patent agent.  According to the author, the court was persuaded to deviate from prior Danish practice, which was far less generous as to costs, in view of the CJEU's 2016 decision in United Video Properties.  In that case, which I previously discussed here, the court concluded that article 14 of the Enforcement Directive "precludes national legislation providing flat-rates which, owing to the maximum amounts that it contains being too low, do not ensure that, at the very least, that a significant and appropriate part of the reasonable costs incurred by the successful party are borne by the unsuccessful party"; and that "to the extent that the services, regardless of their nature, of a technical adviser are essential in order for a legal action to be usefully brought seeking, in a specific case, to have such a right upheld, the costs linked to the assistance of that adviser fall within ‘other expenses’ that must, pursuant to Article 14 of Directive 2004/48, be borne by the unsuccessful party."