tag:blogger.com,1999:blog-5202549570150301909.post8379252862199957908..comments2024-03-15T00:21:23.406-07:00Comments on Comparative Patent Remedies : Bayer v. Richter: Worst CJEU Decision Ever?Thomas Cotterhttp://www.blogger.com/profile/07145440504421320263noreply@blogger.comBlogger1125tag:blogger.com,1999:blog-5202549570150301909.post-22247092546503566592019-10-18T12:47:19.881-07:002019-10-18T12:47:19.881-07:00As I read it, the strict answer to the question is...As I read it, the strict answer to the question is only that the legislature may provide that the defendants will not be compensated [58], [71], but without saying that such compensation is prohibited. It looks like the referring court was inclined not to order compensation and was wondering whether that was permissible. Recital (22) says you have to provide compensation for unjustified preliminary injunctions, but doesn't (on its face) say you can't provide compensation for injunctions that are justified at the time, if they turn out to have been "unjustified" with hindsight. Now, I acknowledge that some of the policy reasoning eg [65], imply that compensation should not be granted in such circumstances, but I'm not sure there is an express holding to that effect. Also, as I read it, this deals with legislation. In UK practice as I understand it, compensation is ordered on the basis of an undertaking by the patentee to the court agreeing to compensate the defendant, which is given at the time the injunction is granted. It's not clear that the decision applies at all when compensation is granted on that basis. Art 9(7) says the defendant must be compensated in certain circumstances; it's hard to read it as saying the defendant must not be compensated in certain circumstances. (Though again, the CJEU reasoning does seem to suggest as much.)Normanhttps://www.blogger.com/profile/17573687140337856397noreply@blogger.com