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Enforcement through the courts

At trial

What level of expertise can a patent owner expect from the courts?

As a general rule, two technical judges and one legally trained judge (the president) participate in court cases at the Maritime and Commercial High Court. Hence, a patent owner can expect both high-level technical and judicial expertise.

Are cases decided by one judge, a panel of judges or a jury?

As a starting point, two technical judges and one legally trained judge (the president) participate in court cases at the Maritime and Commercial High Court. In cases of a particular complex or fundamental nature, two additional technical or legally trained judges may participate, if the Maritime and Commercial High Court decides so.

If jury trials do exist, what is the process for deciding whether a case should be put to a jury?

Jury trials do not exist in patent litigation.

What role can and do expert witnesses play in proceedings?

 In patent cases, court-appointed experts usually provide statements regarding the validity or infringement questions at hand. Normally, these expert statements play a substantial role in the court’s adjudication of the case. Expert witnesses summoned by only one of the parties are generally not allowed to be heard, except in the case of preliminary injunctions. As of July 1 2017, new rules regarding court appointed experts, as well as a possibility to use experts appointed by each party, have entered into force. These rules generally allow for experts to play an even bigger part in litigation.

Does your jurisdiction apply a doctrine of equivalents and, if so, how?

Yes, to some extent. According to Section 39 of the Patents Act, the “extent of the protection conferred by a patent shall be determined by the claims. For the interpretation of the claims, the description may serve as a guideline”.

However, case law from the Supreme Court confirms the principle of non-literal equivalents, meaning that a party can be held liable for patent infringement even though the infringing device, process, etc, does not fall within the literal scope of claims, if it is equivalent to the claimed invention.

Is it possible to obtain preliminary injunctions? If so, under what circumstances?

Yes – preliminary injunctions can be granted by virtue of Chapter 40 of the Administration of Justice Act. Preliminary injunctions can be obtained before or during the main proceedings.

The three fundamental requirements for the grant of a preliminary injunction are that the patentee proves or renders probable that:

  • it has a valid patent and that the patent is being infringed;
  • the infringer’s behaviour makes it necessary to grant a preliminary injunction; and
  • the possibility to enforce its patent will be lost if it has to wait for the court’s decision under ordinary court proceedings.

That the infringer's behaviour makes it necessary to grant a preliminary injunction means that the patentee shall be able to specify circumstances proving or rendering it probable that an infringement either has taken place or is imminent.

Preliminary injunctions are often granted on the condition that the patentee provides a security (often a bank guarantee) to cover the estimated damages that the alleged infringer would suffer if the preliminary injunction were erroneously granted. However, the court will not demand a security as a condition for the preliminary injunction, if the patentee has proved (and not merely rendered probable) the entire lawfulness of the preliminary injunction.

The court will not grant a preliminary injunction if the injunction with regard to the specific circumstances of the case is considered a disproportionate legal remedy. The courts rarely apply this rule, though, and the preparatory works to the Administration of Justice Act stipulate that this rule of exemption shall not be applied unless there is a significant difference between the patentee's interest in a preliminary injunction and the possible harmful consequences of the defendant.

How are issues around infringement and validity treated in your jurisdiction?

 Danish courts – including courts in preliminary injunction cases – will normally hear arguments and rule on the issues of both validity and infringement jointly.

Will courts consider decisions in cases involving similar issues from other jurisdictions?

In cases involving similar patent-related issues, the Danish courts will consider decisions from other Nordic countries (Sweden, Norway and Finland), as the patent legislation in these countries is somewhat uniform. Administrative practice from the European Patent Office (EPO) and decisions from countries covered by the EPO are increasingly being considered (eg, most recently in a decision by the Eastern High Court of Denmark as of April 2017). While parties often include case law from other European countries, it is difficult to assess the extent to which this makes an impression on the Danish courts.

Damages and remedies

Can the successful party obtain costs from the losing party?

As a general rule, the losing party must reimburse the winning party for legal fees and court fees. However, the amount awarded for legal fees is decided at the court’s discretion. These discretionary amounts are substantially lower than the costs actually spent on legal fees by the winning party.

What are the typical remedies granted to a successful plaintiff?

Typical remedies include injunctive relief against the infringing actions (followed by an order against the unsuccessful defendant to withdraw the infringing products) and damages (if any losses are claimed and sufficiently documented).

How are damages awards calculated? Are punitive damages available?

For intentional or negligent infringements, the infringer must pay reasonable compensation for use of the invention, as well as damages for any other damage caused by the infringement(s).

For non-intentional and non-negligent infringements, the infringer must pay compensation only for the use of the invention if, and to the extent that, this is considered reasonable.

Denmark has no provisions regarding punitive damages. Consequently, the Danish courts grant damages for infringements relatively conservatively.

How common is it for courts to grant permanent injunctions to successful plaintiffs and under what circumstances will they do this?

 On the patentee’s request, the court will order, as a remedy for direct and indirect infringements, a final injunction prohibiting the continuation or recurrence of infringement of the right afforded by the patent in question. If the plaintiff provides sufficient evidence to establish infringement, the court usually grants a permanent injunction. In this context, ‘permanent’ means for as long as the patent in question is in force.

Timescale and costs

How long does it take to obtain a decision at first instance and is it possible to expedite this process?

 This depends on the complexity of the case. Generally, it takes approximately six to 12 months to obtain a first-instance decision in normal court cases, whereas it takes approximately three to nine months in preliminary injunction cases.

How much should a litigant plan to pay to take a case through to a first-instance decision?

The cost of litigation depends on the complexity of the case. A first-instance case will cost approximately DKK500,000 for simple cases and between DKK3 million and DKK4 million for more complex pharmaceutical cases.

Preliminary injunction cases typically incur an additional DKK300,000 for simple cases and DKK1.5 million for more complex pharmaceutical cases.

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