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The Market Court rendered on 12 February 2020 a decision approving an application for intervention in a preliminary injunction matter. The matter relates to an application for a preliminary injunction filed by a German patentee, which alleges that a Finnish distributor of a medicinal product infringes a patent of the patentee. The Finnish distributor has denied that the sale of the medicinal product, which has been manufactured by a French manufacturer, would infringe the patent for a number of reasons. According to the distribution agreement between the Finnish distributor and the French manufacturer, the French manufacturer has represented and warranted that the product in question does not infringe any third party rights and has undertaken to defend the distributor against any third party claims on infringement. For, inter alia, said reasons the French manufacturer filed an application for intervention with the Market court requesting that it should be allowed to intervene in the preliminary injunction proceedings on the side of the defendant, i.e. the Finnish distributor.
The German patentee objected against the application for intervention and argued that the provisions of Chapter 18 of the Procedural Code on intervention in litigation should be understood to mean only main proceedings on the merits of the case, and not summary proceedings such as e.g. preliminary injunction proceedings. The German patentee also argued that summary proceedings shall be handled in a swift manner, and accordingly, there is no time to allow interventions by third parties.
The Market Court stated in its decision that the provisions of Chapter 18 of the Procedural Code does not contain any explicit provision as to whether intervention shall be allowed in preliminary injunction proceedings or not. Furthermore, the Market Court also concluded that there are no court practice on the issue nor has the issue been discussed in legal commentaries. In fact this seems to have been the first application for intervention that has been presented in a preliminary injunction case before the Market Court. The Market Court concluded that although the characteristics of summary proceedings (such as a claim for preliminary injunction) is the grant of a temporary relief, urgency of the proceedings and a summary examination of the claims, said characteristics do not change the fact that also summary proceedings are “proceedings” within the meaning of the Procedural Code. The Market Court therefore considered that the general rules on intervention of Chapter 18 of the Procedural Code shall also apply to summary proceedings.
The Market Court stated that a prerequisite for approving an application for intervention is that the third party can show that it has a legal interest to intervene. Since a decision in the preliminary injunction matter will entail an assessment as to how likely it is that the medicinal product manufactured by the French manufacturer infringes the patent of the German patentee, the Market Court concluded that the French manufacturer indeed has a legal interest in the matter and shall therefore have the right to intervene in the preliminary injunction proceedings on the side of the defendant, i.e. the Finnish distributor. The Market Court has subsequently requested the French manufacturer to file its intervention submission in the matter. Considering the urgency nature of the preliminary injunction matter, the deadline granted for the filing of such submission was fairly short.
The decision on the application for intervention is not yet final and the Market Court has not yet rendered its decision regarding the German patentee’s claim for a preliminary injunction against the Finnish distributor.
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