In appeal proceedings against a granted ex parte injunction, the Court of Appeal considered that the test whether there is an imminent threat of infringement must be based on objective criteria.. There is an objective threat of infringement if the defendant obtained a marketing authorisation and a price. The Court considered the conditional intention not to launch, expressed by the defendant prior to litigation, too vague and possibly subject to change and therefore insufficient to prove that there was not an imminent threat.
A full summary of this case has been published on Kluwer IP Law.
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