Drastic times call for ex parte interim measures
In Belgium, a preliminary injunction (‘PI’) is rarely granted on an ex parte (or unilateral) basis. Adversarial debates are considered as a cornerstone of legal proceedings, and one is entitled to deviate from this principle only in the case of so-called ‘absolute necessity’.
This high threshold essentially requires that the petitioner, which for the purposes of this blog is the patentee, is ‘cornered’ in such a way that, despite its diligent course of action, adversarial proceedings do not allow obtaining the requested measure in time to prevent an imminent threat of serious and irreparable damages.
Over the last few years, ex parte interim measures have been granted in at least four patent disputes, which help to shed a light on the circumstances under which they can be considered by the patentee as a measure of last resort to stop a (threat of) infringement.
Legal principles underpinning ex parte interim measures
Article 584 Judicial Code provides that the President of the competent court can order interim measures in urgent matters. In patent infringement disputes, it is further required that the patentee can rely on a prima facie valid right that is prima facie (threatened to be) infringed.
If a petitioner wishes to obtain interim measures on an ex parte basis, in addition to the above requirements, then (s)he should also demonstrate that there is so-called ‘absolute necessity’. This implies that the requested measures are so urgent or of such nature that the petitioner cannot adequately protect its rights via adversarial PI proceedings, even with a reduction of the normal summoning period.
Only in such a case is an exception to the essential principle of an adversarial debate deemed appropriate. The Presidents of the competent courts must examine whether the ‘absolute necessity’ requirement is complied with at the moment the petition is lodged. Reference in case law is made to the following types of ‘absolute necessity’ situations:
- if the smallest delay, inherent in adversarial proceedings, is incompatible with the required legal protection against, for instance, an imminent threat of serious and irreparable damage;
- if it is made reasonably plausible in a specific and objective manner that there is a justified fear that the urgent interim measure, given its nature, cannot be ordered in an effective way in adversarial proceedings, for the reason that adversarial litigation would enable the counterparty to anticipate the measure requested, remove the measure’s purpose or compromise its effect;
- if there is no counterparty or if the counterparty is absent or unknown, or if it proves to be impossible to identify the person or persons against whom the measures obtained must be executed, in a precise, certain and effective way.
Ex parte interim measures in practice in patent infringement disputes
In the context of patent infringement disputes, over the last years, the Presidents of the Brussels enterprise courts, which are exclusively competent to deal with such disputes, have granted interim measures on an ex parte basis in four different cases of attempts to launch a generic product on the market
An intention of market entry close to the hearing in inter partes PI proceedings
In one situation, a generic product became reimbursable on 1 August 2017 and the generic company intended to enter the market on the same date, despite inter partes PI proceedings already having been initiated and a hearing having been set for 22 August 2017.
The President considered that the patentee, despite having taken the necessary steps in time, risked being confronted with a market entry and would face significant and irreparable damage, which could not be avoided through adversarial proceedings. Interim measures were imposed on an ex parte basis awaiting the outcome of the inter partes PI proceedings.
A notice of market entry combined with a request for a reopening of the inter partes PI proceedings
In a second case, in October 2017, a generic company, after the inter partes PI proceedings had been taken into deliberation, gave the patentee notice that it intended to enter the market within four weeks. At the same time, it requested to reopen the inter partes PI proceedings because a foreign decision on the merits that had intervened following the inter partes PI hearing and that had declared the foreign tier of the same European patent invalid.
The President granted interim measures on an ex parte basis pending the inter partes PI proceedings.
A last-minute notice of market entry answered with inter partes and ex parte action
A third case involved were three generic companies, one of which had launched invalidity proceedings regarding a dosage patent, but none of which had given notice of an intention to enter the market. In November 2017, after the patentee had sent notice letters close to the expiry of the compound patent, the three generic companies stated that they would not respect the dosage patent. The patentee launched inter partes PI proceedings and simultaneously applied for an ex parte PI.
The interim measures were granted ex parte awaiting the outcome of the inter partes PI proceedings. Two of the generic companies, however, applied on an ex parte basis for a suspension of the ex parte interim measures, which was ultimately granted by the Brussels court of appeal.
A market entry in violation of an undertaking to give two months’ notice
In the last and most recent case, a generic company had committed to the patentee to give two months’ notice if it intended to enter the market. In October 2018, the generic company launched its product on the Belgian market without giving the patentee any notice.
The President granted interim measures on an ex parte basis for violation of the agreement between the patentee and the generic company, and pending the outcome of the inter partes PI proceedings that the patentee was obliged to initiate within a week.
Some lessons for ex parte (or unilateral) interim measures can be learned from the four cases above:
1. Patentees should act diligently and take the necessary initiatives in time in view of obtaining measures through adversarial proceedings.
2. Ex parte interim measures can be envisaged when, despite such timely initiatives, the alleged infringer intends to enter the market and is not willing to await the outcome of inter partes PI proceedings.
3. The requested ex parte interim measures should only be requested awaiting the outcome of inter partes PI proceedings, and cannot replace inter partes interim measures.
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