Article 9(4) of Directive 2004/48/EC obliges Member States to ensure that courts may issue provisional measures, including injunctions, without giving prior notice to the defendant in certain circumstances. This applies, in particular, when a delay is likely to result in irreparable harm to the rights holder, or when there may be a real risk that evidence may be concealed or destroyed by the defendant. Although effective enforcement is a central aim of the Directive, the provision also recognises the exceptional nature of ex parte measures, which must be applied with due regard to fundamental procedural rights.
Under the corresponding rule in Danish procedural law, the court may dispense with notifying the opposing party whene it is deemed unobjectionable (ubetænkeligt), or where prior notice would undermine the purpose of the injunction.
In a – rare – recent decision (BS-19037/2025) from the Danish Maritime and Commercial High Court (Sø- og Handelsretten) these rules were applied in practice. The dispute evolved over several rounds of litigation between Biogen and Sandoz on patents relating to the use of dimethyl fumarate in the treatment of multiple sclerosis.
Biogen obtained its first preliminary injunction against Sandoz on 3 February 2023, following proceedings initiated in August 2022. That injunction was upheld both by the Commercial Court and, later, by the Eastern High Court in December 2023. A second injunction was granted in February 2025 on the basis of a patent claim that had been limited to cover only relapsing-remitting multiple sclerosis (RRMS). Both injunctions remain in force.
Nevertheless, Sandoz was awarded a public procurement contract by Amgros in February 2025 for the product “Dimethyl fumarate 1a Farma.” According to Biogen, the tender offer infringed its patent rights, as the active substance and its approved therapeutic use remained within the scope of the earlier injunctions.
In response, Biogen initiated new injunction proceedings, this time seeking an ex parte decision. The court, however, declined the application. The court held that—despite the parties’ previous legal history—it would not be unobjectionable to exclude Sandoz from the hearing. Moreover, the purpose of the injunction would not be undermined by notifying Sandoz, since the supply period under the Amgros tender would not commence until 1st of August 2025, providing ample time for a hearing and a decision.
The decision illustrates the cautious approach taken by Danish courts in relation to ex parte measures in patent cases. Even in cases involving repeated infringement claims and enforceable injunctions, the threshold for excluding the defendant from proceedings remains very high.
Under the corresponding rule in Danish procedural law, the court may dispense with notifying the opposing party whene it is deemed unobjectionable (ubetænkeligt), or where prior notice would undermine the purpose of the injunction.
In a – rare – recent decision (BS-19037/2025) from the Danish Maritime and Commercial High Court (Sø- og Handelsretten) these rules were applied in practice. The dispute evolved over several rounds of litigation between Biogen and Sandoz on patents relating to the use of dimethyl fumarate in the treatment of multiple sclerosis.
Biogen obtained its first preliminary injunction against Sandoz on 3 February 2023, following proceedings initiated in August 2022. That injunction was upheld both by the Commercial Court and, later, by the Eastern High Court in December 2023. A second injunction was granted in February 2025 on the basis of a patent claim that had been limited to cover only relapsing-remitting multiple sclerosis (RRMS). Both injunctions remain in force.
Nevertheless, Sandoz was awarded a public procurement contract by Amgros in February 2025 for the product “Dimethyl fumarate 1a Farma.” According to Biogen, the tender offer infringed its patent rights, as the active substance and its approved therapeutic use remained within the scope of the earlier injunctions.
In response, Biogen initiated new injunction proceedings, this time seeking an ex parte decision. The court, however, declined the application. The court held that—despite the parties’ previous legal history—it would not be unobjectionable to exclude Sandoz from the hearing. Moreover, the purpose of the injunction would not be undermined by notifying Sandoz, since the supply period under the Amgros tender would not commence until 1st of August 2025, providing ample time for a hearing and a decision.
The decision illustrates the cautious approach taken by Danish courts in relation to ex parte measures in patent cases. Even in cases involving repeated infringement claims and enforceable injunctions, the threshold for excluding the defendant from proceedings remains very high.
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