Preliminary injunction motion rejected due to passivity

In August 2020, the claimants filed a motion for a preliminary injunction against the defendants' import and sale etc. of certain kits and sequencing platforms for polynucleotide sequencing. The motion was based on one of the claimants' patents. 

However, in May 2019, the claimants had initiated a main action against the first defendant, based on the same patent, requesting injunctions against almost exactly the same range of kits that subsequently became the objects of the preliminary injunction proceedings. In their briefs during the main action, the claimants had furthermore made references to the same platforms that were subsequently included in the claimants' requests for preliminary relief, although the claimants did not seek injunctions against the defendants' platforms in the main action. 

In February 2020, the main action had been stayed on the outcome of opposition proceedings at the EPO Opposition Division, on a motion by the defendants which the claimants had contested.

The Danish Maritime and Commercial High Court's decision

The Court completely rejected the claimants' motion for a preliminary injunction, referring to the fact that the preliminary injunction proceedings in all essentials concerned the same alleged infringements as the main action initiated 15 months earlier. The Court found that the kits against which preliminary injunction was sought were identical with or had the same components as the kits covered by the main action, and that the claimants, at the time of initiating the main action, were also aware of the platforms against which preliminary injunction was subsequently sought. On this basis, the Court held that the claimants had forfeited their right to assert the patent in preliminary injunction proceedings due to lack of urgency, as significantly longer time than reasonably necessary had passed between the initiation of the main action and the filing of a motion for a preliminary injunction.

The Court specifically noted that it made no difference to the Court's findings that during the time between their initiation of the main action and their filing of a motion for a preliminary injunction, the claimants had allegedly obtained additional evidence with regard to the scope of the alleged infringement, since this evidence did not alter the fact that the preliminary injunction proceedings concerned the same alleged infringements as the main action. The Court highlighted that the claimants had alleged already in their statement of claim in the main action that they were able to prove the alleged infringements, while in a preliminary injunction action it is required only that infringement should be rendered probable. 

Finally, the Court observed as an obiter dictum that, if called upon to do so, it would be willing to reconsider its earlier decision to stay the main action.

Kromann Reumert acted for the defendants in the case.