In two similar judgments of 26 June 2014, the Belgian Supreme Court (Hof van Cassatie/Cour de Cassation) held that judgments in summary proceedings only remain in force until a court ruling on the merits hands down a different judgment, even if the subject is a registered patent and the judgment on the merits is not final.
The first case pitted Sandoz NV ("Sandoz") and Accord Healthcare BV ("Accord"), manufacturers and distributors of generic medicines, and AstraZeneca NV and AstraZeneca AB ("AstraZeneca"), owners of a patent-protected medicine, concerning the operational force of a preliminary injunction granted against the commercialisation of generic copies of the patented product. The second case involved Sandoz and Bayer Pharma AG ("Bayer"), and related to a medicine patented by Bayer.
In each of the cases, the appeal before the Belgian Supreme Court was directed against a judgment of the Brussels Court of Appeal (Hof van Beroep/Cour d'Appel) in which the Court of Appeal had held that the preliminary injunction which it imposed in summary proceedings would remain in force until a judgment on the merits becomes final.
The Court of Appeal justified its approach by pointing out that a possible later judgment on the merits annulling the patent at first instance would not be enforceable in case of an appeal. In addition, the Court of Appeal considered that patent law explicitly stipulates that an appeal before the Supreme Court against the annulment of a patent suspends the annulment decision. In other words, under patent law, the annulment of a patent only becomes effective when the annulment decision becomes final.
The Supreme Court disagreed. It held that pursuant to Article 584, section 1, of the Belgian Judicial Code (according to which the President of the Court of First Instance can provide injunctive relief in urgent cases) and Article 1039, section 1, of the Belgian Judicial Code (according to which judgments in summary proceedings are without prejudice to proceedings on the merits), the President acting in summary proceedings may only order provisional measures and has no jurisdiction to anticipate the judgment on the merits. The Supreme Court therefore held that a judgment of the President acting in summary proceedings ceases to have effect as soon as the court reviewing the case on the merits has handed down a different decision on the matter. The Supreme Court held that this is true even if that decision is not immediately enforceable and an appeal was lodged against that decision.
The Supreme Court also emphasised that this point of view is not changed by the fact that, in accordance with Article 51 of the Belgian Patent Law of 28 March 1984, (i) a decision on patent revocation will only be entered in the patent register after it becomes final, and (ii) an appeal before the Supreme Court has suspensive effect.
Significantly, the Supreme Court also held that the President of the Commercial Court, acting in summary proceedings, can still impose new preliminary measures on the basis of a new prima facie assessment and regardless of the patent revocation, if the patent holder is able to demonstrate that his appeal against this judgment will be successful and that these preliminary measures are justified considering the particular circumstances of the case, such as the duration of the procedure and the damage that may ensue in the absence of preliminary measures.
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