INTRODUCTION Contributed by: Daniel Lim, Steven Baldwin and Jin Ooi, Kirkland & Ellis International LLP
from authorities to push back against some of the practices employed to increase exclusivity periods, while continuing to reward “true” innovation. This in turn highlights the continuing importance of well- considered product life cycle management across the globe. Enforcement and cross-jurisdictional injunctions Enforcement considerations remain an essential piece of any commercial IP strategy, with patent rights usu ‑ ally being backed by the ability to obtain a preliminary injunction preventing launch of an infringing generic, biosimilar or other product within the jurisdiction. We are now seeing a potentially major shift in this area following BSH Hausgeräte v Electrolux , which opened the gates for new cross-border “long-arm” injunctions provided an anchor defendant is domiciled in the juris ‑ diction of the court which is being asked to exercise this power. Both the Unified Patent Court (UPC) and some EU national courts have already exercised this power and issued injunctions to restrain infringing product launches not just within the court’s own juris ‑ diction but also in other countries. In addition to examples of injunctions covering several EU countries (both within and outside the UPC con ‑ tracting states), there have been decisions affecting products in jurisdictions which are members of the European Patent Convention (EPC) but not the EU, such as the UK. This has been the case notwithstand ‑ ing that the defendant sought to raise the defence that the relevant patent is invalid – prior to the BSH Hausgeräte v Electrolux decision, this would have pre ‑ cluded a cross-border injunction being granted. It will be important to follow how this area evolves over the coming year, with some speculating that such cross- border jurisdictions could even extend to patents of countries outside EPC countries, including to the US (a matter that is already presently before the European courts, albeit not in a life sciences context). Notably, to date the courts which have been pre ‑ pared to grant such cross-border “long-arm” injunc ‑ tions have generally applied their own local laws and procedures in their decision-making, adopting the rebuttable presumption that the outcome would be the same under the law of each of the other jurisdic ‑ tions to which the injunction is proposed to extend
and placing the onus on the defendant to convince the court otherwise. Arguably, that is a significant shift in the burden of proof from claimant to defendant, with major implications for litigants. It remains to be seen, as the jurisprudence develops, whether or not this will remain the position, and in practice what standard of evidence will be required to rebut the presumption to the satisfaction of the court. Given the extensive scope, along with the procedural and evidential economy, of such injunctions, we would expect to see these features increasing prominently in the litigation strategy of patentees across all indus ‑ tries, including life sciences. These tactics also raise accompanying considerations of forum shopping between the UPC and different EU national courts. Conversely, we may also begin to see a response from the courts of countries whose patents are subject to cross-border injunctions, particularly where patent validity is in dispute. In that regard, the recent uptick in anti-suit injunctions and jurisdiction challenges in the SEP/FRAND arena may be a precursor of what is to come in life sciences and pharmaceutical cross- border disputes. Continuing evolution of the UPC The UPC turned two years old in June 2025 and con ‑ tinues to shift the European patent litigation land ‑ scape, across the 18 contracting EU member states and beyond. In addition to extending its jurisdiction beyond the contracting states (as discussed above), the UPC’s influence has continued to grow as it gains more experience of dealing with cases and patentees gain more confidence in its practice and procedures. The number of infringement and revocation actions filed at the UPC continues to grow steadily, including an increasing number of pharmaceutical companies choosing to opt-in and use the court. As a result, we have had the first preliminary injunction to restrain sales of a generic pharmaceutical across the UPC states. On the other hand, innovator-against-innovator actions continue to be filed, including in relation to COVID-19 treatments, highlighting the wide range of potential court users. The UPC has been busy over the past year, dealing with a variety of procedural and substantive issues as they have fallen to be considered at first instance and
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