Gabriel on the CJEU’s Decision in Mylan v. Gilead

Marianne Gabriel has published an article titled Quand le Cour de justice rappelle la nécessité d’un régime équilibré!  CJUE, 11 janv. 2024, aff. C-473/22, Mylan AB c/ Gilead (“When the Court of Justice Recalls the Need for a Regime in Balance!  CJEU, Jan. 11, 2024, Case C-473/22, Mylan AB v. Gilead”), Propriété Industrielle, avril 2024, pp. 3-5.  Ms. Gabriel argues (and I agree, see here) that the CJEU was right to conclude this past January that member states may award compensation to a defendant who has been excluded from the market on the basis of a preliminary injunction, where the patent is later found to be invalid or not infringed, regardless of whether the patent owner was at fault in pursuing the injunction.  As I noted when the case came out earlier this year, it is a bit hard to square with the CJEU’s previous decision in Bayer v. Richter, which appeared to permit member states to deny compensation, at least where the defendant had entered at risk before attempting to invalidate the patent in suit and the patent owner was not at fault; and it is still a bit unclear to me how exactly to square the strict liability standard affirmed in Mylan v. Gilead with some of the CJEU’s statements in that case approving of the consideration of all the relevant facts and circumstances in determining the amount of compensation due.  That said, I think the decision is a step in the right direction, and I assume that these other matters are fleshed out in future cases.  The author, as I said, approves of the recent decision as well, and notes that it is consistent with French precedent pre-dating Bayer v. Richter, such as Laboratoires Negma SAS v. Biogaran SAS, Cour d'appel de Paris, Jan. 31, 2014 (for previous discussion, see here).  As the title of the article suggests, and if I understand correctly, Ms. Gabriel believes that the recent decision restores balance to the system, insofar as both parties assume a certain degree of risk:  the defendant, that it will be enjoined, and the plaintiff, that it will have to pay if the injunction is granted and thereafter lifted.  But there is no reason why the defendant’s risk should also entail not being restored to the position it would have occupied, had the injunction never been entered; in particular, the perceived need for a high level of IP protection does not weigh in favor of imposing this burden on a defendant who, it turns out, is merely engaging in lawful competition.  Ms. Gabriel also holds out hope that the UPC will interpret UPCA article 60(9) and Rules of Procedure 213 and 354(2) in like fashion.