Oticon successful in patent action
18 August 2015
With legal assistance from Plesner Oticon A/S was successful in a case before the Danish Eastern High Court about GN ReSound A/S' infringement of Oticon's patent and utility model.
|As the court of first instance the Danish Maritime and Commercial High Court refused to issue a preliminary injunction despite the Court finding that Oticon had discharged the burden of proof that the rights were effective and had been infringed.
The refusal to issue a preliminary injunction was made by stating that the condition laid down in section 413(iii) of the Danish Administration of Justice Act had not been fulfilled as it was found that it had not been proved on a balance of probabilities that Oticon's ability to enforce its right would be lost if Oticon was to await the settlement of the dispute by ordinary legal proceedings and that the issue of a preliminary injunction would be disproportionate, see section 414(2).
The ruling was surprising as it was the first time that a preliminary injunction had been refused for such reasons in a patent action.
The ruling by the Danish Maritime and Commercial High Court was reversed
The Danish Eastern High Court reversed the ruling by the Danish Maritime and Commercial High Court in respect of this issue and thus found completely for Oticon in its ruling of 14 August 2015.
The ruling by the Danish Eastern High Court emphasises that the injunction remedy can and often will be the primary protection in actions involving patents and utility models etc and that section 413(iii) of the Danish Administration of Justice Act must be applied and construed in such light. It was also emphasised in the reasoning that section 414(2) of the Danish Administration of Justice Act is a provision that only applies as an exception and according to the High Court there was no basis for refusing to issue a preliminary injunction by referring to the provision in this specific case.
The injunctions and orders were conditional on the provision of security in the amount of DKK 5 million. Oticon was awarded a total of DKK 4 million in legal costs before the two courts.
Attorney-at-law, partner Peter-Ulrik Plesner and attorney-at-law, partner Mikkel Vittrup conducted the case on behalf of Oticon.