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Yet, the court found Merck s offer to be just sufficient as it also reasonably reflected uncertainties as to the validity of the patent against which appeal proceedings before the Board of Appeals of the European Patent Office are pending – https://www.resonancehealth.com/feedback or responsibility for the content of the site.
In the Polyferon decision the Federal Supreme Court had established the test to determine the importance of a drug to the public health: the medicament must treat a serious disease which cannot be treated by a comparable product or only so with considerable side effects.
Apparently Merck s offer to pay 10 million USD for a global licence was considered entirely unacceptable by Shionogi who had requested a much higher payment. In practice, this criterion translates to a weighing of interests. Although Merck s offer was considered low, according to the opinion of the Court, a further improved offer could not be expected given the enormous difference between the parties expectations. Detrimental effect on patients health if the drug was removed from the market More importantly, the granting of a compulsory licence must lie in the public interest, which is a rather high threshold and must be proven by the licence seeker.