Context:
- The availability of preliminary injunctions (PIs) over patents is anything but harmonized in Europe. The Unified Patent Court (UPC) applies a “more likely than not” standard. National courts have their own approaches. All courts within the EU are, however, bound by the European Court of Justice (ECJ) guidance in Phoenix v. Harting, which stressed that the likelihood-of-validity standard for a patent PI must not be excessive as PIs should be available even over patents that have not been battle-tested against a particular set of invalidity contentions.
- Bayer’s patent enforcement campaign relating to its Xarelto blood-thinner drug is among the largest in the history of the pharmaceutical industry. Last summer we reported on a UK ruling related to wrongful enforcement (July 31, 2025 ip fray article). In some large jurisdictions such as Germany, Bayer ultimately lost, but in certain small and medium-sized markets, it succeeded. The relevant patent, EP1845961 (“Treatment of thromboembolic disorders with rivaroxaban”), has a Swiss-style claim structure (manufacturing and use combined).
What’s new: On Thursday (January 8, 2026), the Højesteret (Supreme Court of Denmark) handed down its decision adjudicating appeals by Teva, Sandoz and Glenmark after the Østre Landsret (Eastern High Court) had sided with Bayer and reversed PI denials by the Sø- og Handelsretten (Maritime & Commercial Court). You can find a machine translation of the decision further below. The High Court decision (i.e., the holding that Bayer was entitled to PIs against the three defendants) was affirmed, and on this occasion the Supreme Court of Denmark spelled out a standard for the patent validity assessment in PI proceedings and addressed the question of redundant patent claim limitations.
Direct impact: At this point it was practically just about money, and the generics makers now have to reimburse Bayer. For Denmark, this is the end of the road.
Wider ramifications: Relying on Danish statutory law, the Supreme Court of Denmark declined to adopt the UPC’s standard. Its own standard is more favorable to patentees.
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Court and counsel
Panel: Poul Dahl Jensen, Michael Rekling, Jens Kruse Mikkelsen, Rikke Foersom, and Peter Mørk Thomsen.
Prevailing plaintiff-appellee Bayer was represented by Plesner’s Mikkel Vittrup, Kim Wagner, and Jakob Dolmer.
Counsel for defendants-appellants: Kroman Reumert’s Nicolaj Bording for Teva, Bugge Valentin’s Anders Valentin for Sandoz, and Hortendahl’s Jakob Krag Nielsen for Glenmark.
The parties submitted additional expert statements in the Supreme Court that were not before the two prior instances. The experts are Professor Mark Kramer, Professor Per Morten Sandset, Professor Anders Åsberg, Dr. Jørn Dalsgaard Nielsen, Professor Sylvia Haas, Professor Gerd Mikus, and Professor Dan Atar.