Federal Court of Justice confirms compulsory license for HIV-drug in preliminary injunction proceedings

As reported here previously (see archive September 2016) in the decision of August 31, 2016 (3LiQ 1/16), the German Federal Patent Court has granted in preliminary injunction proceedings, to the benefit of the company group Merck, a compulsory license concerning the German part of the European Patent EP 1 422 218 (DE 602 42 459.3) of the Japanese pharmaceutical company Shionogi. Therefore, Merck was able to continue distribution of its HIV-drug Isentress. According to a press release of the Federal Court of Justice, the court has upheld the Federal Patent Court’s decision on appeal and has confirmed Patent Courts assessment that the pre-trial efforts of Merck to obtain a license on reasonable and customary terms in the present case were sufficient. Further, according to the press release, the Federal Court of Justice also shares the view that a public interest, which is a prerequisite for the grant of a compulsory license under Section 24 Paragraph 1 Number 2 Patent Act, has been made plausible. The court has not issued the reasons for the decision yet.