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Merck Canada Inc v Sigma Pharmaceuticals PLC Case C-539/13

Case Summary  |  Judgment  |  12 February 2015

 

The ECJ has given judgment on this case, which was referred to the ECJ by the Court of Appeal [link to case note on Ct of Appeal] at the request of Sigma Pharmaceuticals, for whom Martin Howe QC and Isabel Jamal act. In the first ever judgment relating to the Specific Mechanism which regulates parallel imports of patented pharmaceuticals from the Accession States, the Court has ruled that a patent owner must respond to a notice of intended importation given by a parallel importer under the Specific Mechanism, and if the patentee does not respond then parallel imports may be undertaken without infringing the patent until such time as the patent owner invokes the Specific Mechanism. The Court also ruled that the notice must be given to a company which is the patent holder or has a legal right under the patent, and that the notice of intended importation may be given by someone other than the parallel importer provided the identity of the importer is made clear.