Thursday, April 7, 2016

From Around the Blogs: News from Canada, the EU, and Spain

1.  On Sufficient Description, Norman Siebrasse has a short post on a recent Canadian decision, Gilead Sciences, Inc v Teva Canada Ltd 2016 FC 336, involving an application for a quia timet (preliminary) injunction against a generic drug firm's introduction of an allegedly infringing drug.   In large part the dispute centered on whether the moving party could show "imminent" harm, even though the introduction of the generic drug to the market likely would not occur for 22 months. The court nevertheless refused to dismiss the request for a quit timet injunction, concluding (as Professor Siebrasse describes it) that "Imminence is not directly relevant, but only in so far as it affects the probability of the future event. This implies that 'imminence' is not to be judged solely temporally, but in a balance with other evidence of the likelihood of the future event. By the same token, 'temporal imminence appears to be a subordinate consideration in a case where the likelihood of future harm appears high' [11]."  This is an interesting case from a theoretical perspective--the whole field of preliminary injunctions is in my view undertheorized and understudied--as well as from a comparative perspective.  Several of the German decisions I've blogged about over the past three years, for example, have centered on the analogous but perhaps not identical requirement of "urgency" (Dringlichkeit); for discussion, see here, here, here, and here.

2.  IPKat has had two interesting remedies-related posts this past week.  The first, from this past Tuesday, discusses AG Campos Sánchez-Bordona's opinion in United Video Properties, Inc v Telenet NV, C-57/15, on the question of whether Belgian civil procedure law, which caps the recovery of attorneys' fees awarded to the successful party in litigation and awards expenses for expert opinions only when the other party is at fault, is consistent with article 14 of the 2004 Enforcement Directive, which states that "Member States shall ensure that reasonable and proportionate legal costs and other expenses incurred by the successful party shall, as a general rule, be borne by the unsuccessful party, unless equity does not allow this."  In the AG's view, the attorneys' fee cap is permitted but the fault requirement for expert expenses is not.  The second, published yesterday, notes the upcoming deadline for submitting public comments to the European Commission on the functioning of the Enforcement Directive in the online environment (further explanation from the Commission here).

3.  EPLaw published a post a few weeks back on Gamesa v. Wobben, a case from the Provincial Court of Appeals of Barcelona from January 14, 2016, in which the court reversed a judgment of infringement in a case involving what the author believes was probably the largest patent damages award in Spanish history (7.7 million).  The appellate judgment is available here, and an English-language summary here, but as the summary notes since the matter was reversed on the merits the appellate judgment doesn't shed any light on the damages issues in the case.   In addition, an EPLaw post from November and an IPKat post from January both discuss Spain's new patent law (which will enter into force on April 1, 2017), which is said to include some new provisions relating to damages and will permit the use of protective letters--a topic that has been the subject of some previous discussion on this blog (see here and here).  Here is a link to the new Spanish law; it looks like protective writs (escritos preventivos) are covered by article 132.

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