Ersatzansprüche bei ungerechtfertigten einstweiligen Verfügungen im Pharmabereich – Ansprüche des Antragsgegners und geschädigter Dritter, GRUR 13/2023

Preliminary injunctions orders are commonly granted for pharmaceutical patents. If an order later proves to be unfounded, under § 945 German Code of Civil Procedure (ZPO) the defendant generic company can claim damages on the basis of the plaintiff’s strict liability. However, attempts to enforce these claims are rare, and even when they are, 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 unjustifiable maintenance of high prices for formerly patent-protected medicines. The resulting higher costs place a burden on the already strained health care system as well as on the health insurance companies. § 945 ZPO doesn’t take this situation into account, raising the question of the need for further bases for claims. More on this is explained by Dr Marco Stief together with Dr. Anja Geller in the current issue of GRUR 13/2023.