Thursday, December 21, 2017

Compulsory Licensing in Germany

In July and September I blogged (here and here) about the decision of the German Federal Supreme Court (Bundesgerichtshof) to affirm the grant of a preliminary injunction authorizing the compulsory licensing to Merck of the German component of a European patent held by the Japanese firm Shionogi on the anti-AIDS drug raltegravir.  Since then there have been several other writeups, including posts on EPLaw (by Tobias Wuttke), the IAM Blog (by Johann Pitz), the Kluwer Patent Blog (by Jochen Buehling), and SpicyIP (by Dr. Thorsten Dierkes and Dr. Anuradha Sharma).  (IAM also published a follow-up last week, discussing calls coming from the Netherlands for greater use of compulsory licensing of pharamceuticals, see here.)  These are all worth reading, for their takes on how the court understands the "public interest" requirement for the granting of a compulsory license, as well as the "urgency" requirement for granting a preliminary injunction (basically, it's not as relevant in this context as in others if the moving party hesitated to seek relief, given that the basis for granting a compulsory license is to protect the public interest).  The authors all note that this is the first time that the BGH has affirmed the grant of a compulsory license for a drug, so perhaps the decision heralds a new approach in German (and European) law on the subject; though for reasons I stated in my July post I would still hesitate to draw too many conclusions on the basis of this one case that, as explained in my post, involved what appeared to be rather unusual facts.  It also is worth noting, as explained in this subsequent post by Dr. Rudolf Teschemacher on EPLaw, that the EPO Technical Board of Appeal on October 11 revoked Shionogi's patent.  (The decision doesn't appear to be up yet on the EPO's website, though presumably it will be before too much longer.) 

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