CFI decision set aside: provisional measures granted.
Invalidity defence in proceedings for provisional measures does not require a counterclaim for revocation and is not a separate action (R. 25.1 RoP, R. 205 RoP).
Similarly, a waiver of an invalidity defence in proceedings for provisional measures is not an application to change the claim or amend the case in the meaning of R. 263 RoP, nor is it a withdrawal in the sense of R. 265 RoP.
Admission of new evidence in appeal (R. 222.2 RoP). New evidence admitted to challenge factual assumptions made by the CFI. Public legal materials admitted despite belatedness: the Court of Appeal exercises its discretion here and admits exhibits 226-228 in the proceedings. These exhibits are relevant and the Court of Appeal would have been unhindered to inform itself of these orders.Exhibints 229, 230 and 231 (e-mail correspondence between Viatris Santé and CEPS) are disregarded due to belatedness and lack of relevance.
Imminent infringement (Article 62 UPCA, R. 211.2 RoP) and undue delay (R. 211.4 RoP). There is no need to determine in this case whether awareness of an imminent infringement also sets the clock in motion for the calculation of delay within the meaning of R. 211.4 RoP caused by an actual infringement. This is because there is insufficient support for the view that Merz was aware or should have been aware of any imminent infringement.
Necessity and balance of interests (Article 62.2 UPCA, R. 211.3 RoP). Concluded that the patients’ interests of continuous supply cannot be expected to be jeopardized by a provisional injunction. The short time left before SPC 033 expires does not speak against provisional measures, especially since this is due to a reversal of the order of the Local Division on appeal.
