In my blog of 10 June 2011 I had reported about the decision by the Landgericht Duesseldorf “Pramipexol” (4a O 277/10) where the Court of first Instance had granted a PI based on an anonymous confirmation by a research institute. This decision has been reversed by the Court of Appeals (I-2 U 22/11).
The Court of first Instance had issued a preliminary injunction against a generic company before the generic was listed in one of the usual publications (Rote Liste, Lauer Taxe etc.). The Court had accepted as sufficient proof of an infringing activity the confirmation from an independent market research organization according to which the generic drug had been offered to a physician by a pharmaceutical sales representative at a certain date. The information did neither name the physician, nor the representative, nor the place where the incident occurred.
On appeal the decision was reversed by the Oberlandesgericht Düsseldorf (I-2 U 22/11). The Court found that the information provided by the marketing research organization had no character of proof because it did not reveal an individual from whom the information stemmed. It argued that anonymous information lacked the essential pre-requisite for proof namely that it could be verified and that an individual was responsible for its being truthful.
by Max v. Rospatt
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