Faster, Zyprexa and the Oberlandesgericht Dusseldorf

About 10 years ago James Gleick wrote a book called ‘Faster‘ – it is basically about ‘the acceleration of just about everything’. Well, if anything, the acceleration has only increased in the past few years – especially in the world of intellectual property.

Our Global Week in Review runs to about 20 pages – that’s 20 pages of separate, global news (or blog) worthy stories or issues – every week. We’re actually fighting to keep it at around 20 pages by streamlining the sources of information we use to ensure that we’re happy with their quality and that they have a unique ‘voice’ for our readers.

This is one of the reasons why IP Strategy just has to be iterative – the world is changing, the facts of your situation are changing (as I write this) and so too is the law.

Case in point – on May 29 this year, the German Düsseldorf Appeal Court handed down a decision in the Zyprexa (Olanzapine) litigation which overturned some basic assumptions about German patent litigation strategy. Until 29 May, the collective wisdom in the patent litigation world (at least outside Germany) had been that because invalidity and infringement of patents must be tried in separate courts in Germany, then a finding of invalidity (in the Federal Patent Court) is unappealable in the infringement court. Thus, the patentee can no longer get an injunction in the infringement proceedings.

Not so fast. As it turns out, Eli Lilly appealed the invalidity decision and argued in the separate, infringement appeal that the validity decision was so bad (‘evidently incorrect’) that an injunction should be maintained – and so it was held (on constitutional grounds).

As I’ve said before, it’s dangerous to make assumptions, every rule has its exception, and things only look set to speed up.

What are your plans for dealing with this?

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