European IP Bulletin, Issue 90

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In Depth


Court of Appeal of England and Wales Allows Damages Under a Cross-Undertaking in Respect of an Interim Injunction
In Les Laboratories Servier and another v Apotex Inc. and others [2012] EWCA Civ 593, the Court of Appeal of England and Wales has allowed an appeal against a High Court decision that an importer of pharmaceutical products made in Canada could not recover damages under a cross-undertaking in respect of an interim injunction after the UK patent was invalidated, because the Canadian patent had been held valid and infringed.

Advocate General Recommends Dismissal of AstraZeneca Appeal
On 15 May 2012, Advocate General Mazak gave an opinion on the appeal by AstraZeneca against a judgment by the General Court that upheld the European Commission’s decision to fine AstraZeneca for abusive patent misuse.

Advocate General Opinion on The Interpretation of “First Marketing Authorisation” for Supplementary Protection Certificates
Advocate General Trstenjak (the AG) has rendered an opinion in a preliminary reference relating to Neurim Pharmaceuticals Ltd [1991] C-130/11 that it should be possible to grant a Supplementary Protection Certificate (SPC) for a second medicinal product that comprises the same active ingredient as a medicinal product covered by a prior marketing authorisation (MA), if the scope of the basic patent protecting the second medicinal product does not extend to the earlier medicinal product.


Court of Justice of the European Union Considers Whether Unfair Terms and Practices Invalidate Agreements
In Jana Perenicova and another v SOS financ spol. s.r.o. (C-453/10), the Court of Justice of the European Union has considered whether a contract is invalidated if it contains unfair terms or was obtained by unfair commercial practices.

Data Protection

90,000 Reasons To Consider Ongoing Data Protection Training as Critical
The United Kingdom Information Commissioner’s Office (ICO) has issued a £90,000 penalty notice to Central London Community Healthcare NHS Trust for sending faxes containing patient information to an unauthorised fax number. The ICO found the Trust’s lack of ongoing data protection constituted a failure to take appropriate organisational and technical measures to prevent unauthorised processing of personal data.


Protection of Computer Programs Revisited by the Court of Justice of the European Union
The Court of Justice of the European Union has again examined the question of which elements of a computer program are protectable by copyright. In line with its previous decisions, it has confirmed that the functionality, language and data format of a program are not protectable as they are part of the ideas or principles underlying the program.

General Intellectual Property

OHIM Tasked with IP Infringement Monitoring Role
By way of a Regulation 386/2012, which was published on 16 May 2012, the Office for Harmonization in the Internal Market (OHIM) has been entrusted with certain tasks relating to tackling the infringement of intellectual property rights.

Trade Marks

Counterclaims for The Invalidity of a Community Trade Mark Are a Shield, Not a Sword
The High Court of England and Wales has confirmed that counterclaims for the invalidity of a Community trade mark can only be brought by a defendant where the counterclaim would result in a defence to the claimant’s claim for infringement. Counterclaims that would not impact the main claim should be struck out.