Preliminary injunction in patent case

Schjødt attorneys Christopher Tehrani and Hilda Melander have successfully represented Bayer HealthCare LLC, Bayer Consumer Care AG and Bayer AB (jointly "Bayer") in PI-proceedings against Mylan AB ("Mylan") before the Swedish Patent and Market Court (PMC). In its decision of 28 November 2022 the PMC agreed with Bayer and issued a preliminary injunction prohibiting Mylan, under penalty of a fine of SEK 2 million, from continued infringement of the invoked patent.

Bayer HealthCare LLC is the registered proprietor of EP 2 305 255 ("EP'255") which inter alia protects the drug substance Sorafenib tosylate as such. Bayer's innovative and successful cancer drug Nexavar® makes use of the invention under EP'255. Several generics hold marketing authorizations in Sweden regarding generic Sorafenib products. Mylan – being one – also decided to launch its generic product during the term of EP'255 thus infringing the same in SE.

Given Mylan's failure to cease with its infringing actions Bayer filed action with the PMC and also requested that a preliminary injunction be issued. Mylan filed a counter-suit and claimed alleged invalidity. Mylan furthermore argued inter alia that the Court should not grant a PI given the "short" remaining term of EP'255 (expiring on 3 December 2022).

The PMC in its decision of 28 November 2022, however, agreed with Bayer and issued an injunction against Mylan. The PMC's decision is well balanced and rightly confirms that a patentee is entitled to enforce its valuable exclusive rights conferred by a patent irrespective of the term remaining. In addition, the decision from PMC demonstrates the highly effectiveness of the SE Courts, as the PI-decision was rendered within a month from Bayer's filing of action.