CJEU Allows Strict Liability When Enforcing Provisional Measures For IP Infringement

In a judgment of 11 January 2024 in Mylan v Gilead (C-473/22), the Court of Justice of the European Union (CJEU) has accepted that a party enforcing a provisional measure can be held liable to compensate the defendant for any damages and costs caused by the enforcement, when the intellectual property right on the basis of which that measure was granted is subsequently found to be invalid, or if it ultimately transpires that there has been no infringement.

This judgment adds an important clarification to the CJEU's previous judgment handed down in 2019 in the Bayer case (Bayer Pharma, C-688/17). In that case, the CJEU had upheld the validity of national legislation denying automatic compensation for damages caused by the enforcement of provisional measures on the basis of a patent that was later found to be invalid. The CJEU seemed to require a liability based on fault and specified that compensation could be due when the applicant had committed an abuse (of rights