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Propiedad Industrial e Intelectual

Appeal Court of Granada grants future damages for preliminary injunctions granted ex party

The Decision dated 21 March 2014 of the Appeal Court of Granada has partially admitted the request of a pharmaceutical company to be compensated for damages suffered as a consequence of preliminary injunctions based on patent infringement granted ex party by a Decision dated 30 July 2009 by Commercial Court nº 1 of Granada and revoked by a Decision dated 7 July 2010.

The Appeal Court does not limit the right to be compensated to the period of time where the preliminary injunctions were effective, but also grants damages for years 2011 to 2014. The total amount of damages that the Court of Appeal recognizes rises to 696.137,49 Euros.

In this sense, the plaintiff considered in its request that the preliminary injunctions had delayed the launching date of the product and this delay affected the market share that the company would have obtained in case the preliminary injunctions had not been granted. The request for damages was extended to a period of five years that begins when the plaintiff would have been able to launch the product into the Spanish market if the preliminary injunctions had not been granted.

This is at least the third firm decision on damage request filed by a pharmaceutical company in Spain that had been condemned ex party in preliminary injunctions proceedings based on a patent infringement.

The first decision was issued by Section 15 of the High Provincial Court of Barcelona on 19 September 2012, and had been the damage request was rejected as it was considered that it had been filed after the time limit of one year after the notification of the decision revoking the preliminary injunctions. That Decision stated that the liability of the patentee requesting the granting of preliminary injunctions, was objective. This entails that it is not necessary to prove fault of negligence by IP requesting party.

The second decision was issued by Commercial Court nº 6 of Barcelona on 7 May 2013. The decision established a total amount of damages of 473.088, 93 Euros, but limited the claim to the period while the preliminary injunctions had been effective. None of the parties decided to appeal the Decision and therefore became final.

Other damage claims are pending before Spanish Courts and other ones will be filed in the future. We will have to wait and see how those requests are approached by Spanish Courts.

So in the next years we will see how this question evolves in Spain.