Background: On 15 September 2017, Gilead and others brought an action for infringement of the Supplementary Protection Certificate (SPC) at issue in the dispute before the Commercial Court in Finland directed against Mylan. Gilead and Others also filed an application for interim measures against Mylan. Mylan opposed the infringement action and the application for interim measures. On 30 November 2017, it also brought an action for invalidity of the SPC at issue before that court.

By decision of 21 December 2017, the Commercial Court granted the application for provisional measures brought by Gilead and Others on the basis of the SPC at issue and prohibited Mylan from offering, marketing and using the generic medicinal product in question, as well as from importing, manufacturing and possessing it for those purposes during the period of validity of the SPC at issue, subject to a fine of EUR 500 000. In addition, it ordered that those measures be kept in force until a decision on the merits of the case or until further notice.

Subsequently, at Mylan’s request, those interim measures were revoked on 11 April 2019 by order of the Supreme Court of Finland.

The question referred for a preliminary ruling: ‘whether Article 9(7) of Directive 2004/48 must be interpreted as not precluding national legislation which, under that provision, provides for a mechanism for compensation for any damage caused by an interim measure based on a system of objective liability of the applicant for such a measure, in the context of which the court is nevertheless entitled to adjust the amount of damages in the light of the circumstances of the case, including any involvement of the defendant in causing the damage.’

The decision of the Court of Justice: Article 9(7) of Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights must be interpreted as not precluding national legislation which, under that provision, provides for a mechanism for compensation for any damage caused by a provisional measure based on a system of objective liability of the applicant for such a measure, in the context of which the court is entitled to adjust the amount of damages, taking into account the circumstances of the case, including the possible involvement of the defendant in causing the damage.

 

Case C 473/22 JUDGMENT OF THE COURT (Third Chamber) 11 January 2024