Martina Dani has published an article titled Proportionality in Patent Litigation on Medical Devices, 44 EIPR 570 (2022). Here is the abstract:
Italian courts have recently demonstrated a flexible approach to granting injunctions in patent litigation on medical devices, seeking to strike a balance between patent exclusivity and public health on the basis of the proportionality principle. The application of this principle varies between countries. This article gives an overview of the current approaches to proportionality adopted by Italian, German and English courts and the legal practice which is expected to be applied by the Unified Patent Court.
The article discusses, among other cases, a 2021 interim
decision of the Court of Turin in Edwards Lifesciences v Meril and Viglia,
in which according to the author the court found that "the continued
supply of an infringing medical device is in the public interest and,
therefore, applied expressly the proportionality principle under art.124(6) of
IP Code in order to modulate the impact of the injunction and seizure orders
issued." The court referenced the decision of the High Court of England and Wales in Edwards Lifescience v. Boston (previously discussed on this blog here and here) in which the court had ordered a 12-month stay for similar reasons. The article also discusses another Italian case from August 2021, Illumina v Euroclone and Nuova Genetica Italiana, in which the court permitted certain entities to continue using infringing sequencing kits. The article notes that the German case law has taken a less forgiving approach, including one case decided after last year's amendment to article 139 of the German Patent Act. It also notes a 2020 English decision, Evalve & Abbott v Edwards Life Sciences, which sets forth a series of criteria to consider, in the context of a case denying an application for a stay. For previous discussion of Evalve on the Kluwer Patent Blog, see here.