In practice, pharmaceutical patent infringement cases in Greece are usually over once injunction proceedings or main action proceedings relating to stopping the infringement are litigated. A recent judgment on royalties regarding infringement of a pharmaceutical patent containing process claims is therefore encouraging for pharmaceutical patent owners who are determined to pursue their case in every respect, including their right to sue for damages on the basis of royalties.
The Court has indeed flexibly overcome several technicalities that would otherwise serve as an obstacle to rule on the merits of the case. More specifically, the Court had in an interlocutory judgment ordered an independent expert-accountant report to be provided on the basis of information and data from the defendant's side in relation to its sales of the medicament at issue for a specific period of time.
The defendant responded that it was unable to provide such information and data because it had destroyed the data concerned before the Court's order. The expert made an inquiry to the National Organisation of Medicines (EOF), which refused to provide the information and data requested, on the basis that they are confidential.
That would be normally be the end of the story, since the Court would have been virtually unable to provide a credible basis on which royalties could be calculated. However, the claimant provided the Court with IMS sales data of the defendant's medicament at issue, alleging that IMS data should be considered equally credible, as it is known in the relevant course of trade that it is based for each product on data provided by the pharmaceutical companies themselves.
The Court accepted that IMS data may serve as a credible basis, despite the defendant's objection, and awarded €364,841 as damages on the basis of royalties amounting to 20% of the defendant's sales as well as €50,000 for moral prejudice. So far, this is the largest royalties award by a Greek court in a patent infringement case under the Greek patent regime.
|
Tassos Kilimiris |
Patrinos & Kilimiris
7, Hatziyianni Mexi Str.
GR-11528 Athens
Greece
Tel: +30210 7222906, 7222050
Fax: +30210 7222889
