Court rules on admissibility of infringement proceedings against patent that has not yet been granted

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Three affiliated pharmaceutical companies sought a preliminary injunction, a final injunction and a declaration of liability per se against two generics companies based on a patent expected to be granted soon. The application that the claimants expected to be granted had been rejected by the Examining Division of the European Patent Office. However, a Technical Board of Appeal reversed that decision and referred the matter back to the Examining Division with the order to grant a patent.

The Patent and Market Court held the claimants’ action inadmissible, citing a provision in the Swedish Procedural Code on the admissibility of requests for specific performance, which covers injunctive relief. This provision focuses on when a claim falls due. The Patent and Market Court reasoned that there could be no claim for performance before there is a patent. The claimants appealed the ruling to the Patent and Market Court of Appeal…

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