Does current legislation provide for adequate compensation in cases of unjustified preliminary injunctions? Originator–generic conflicts in the context of patent infringement proceedings

Abstract

Abstract In Germany, preliminary injunctions are frequently granted for pharmaceutical patents. If a granted preliminary injunction later proves to be unjustified, under section 945 ZPO (German Code of Civil Procedure), the defendant generic company can claim damages on a strict liability basis. However, attempts to enforce such claims are rare, and, even when they are enforced, originators have little to fear because their profits routinely exceed the losses of the generic companies by a significant margin. Yet, delayed market entry by generic companies not only harms generic companies themselves but also leads to the unjustifiable maintenance of high prices for patent-protected medicines. The resulting higher costs place a burden on the already strained healthcare system as well as on the health insurance companies. Section 945 ZPO does not take account of these higher costs, raising the question of the need for further legal bases for claims.