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Finally, the agreements concerned obtained results for Lundbeck that Lundbeck could not have achieved by enforcing its process patents before the national courts: The agreements in question prevented the generic company concerned from selling generic citalopram, irrespective of whether such citalopram would be produced in infringement of Lundbeck's process patents.

In the present case other important factors were also taken into consideration, namely: the fact that the value which Lundbeck transferred took into consideration the turnover or the profit the generic undertaking expected if it had successfully entered the market; the fact that Lundbeck could not have obtained the limitations on entry through enforcement of its process patents, the obligations on the generic undertaking in the agreement going beyond the rights granted to holders of process patents; and the fact that the agreement contained no commitment from Lundbeck to refrain from infringement proceedings if the generic undertaking entered the market wi ...[+++]th generic citalopram after expiry of the agreement.

Prior to the agreements concerned, Lundbeck had usually claimed infringement of one or more of its process patents and the generic undertaking concerned had usually claimed non-infringement of the patent(s) concerned or invalidity of the patent(s) Lundbeck invoked.

(b) using a process which is the subject matter of the patent or, where the third party knows, or should have known, that the use of the process is prohibited without the consent of the proprietor of the patent, from offering the process for use within the territory of the participating Member States in which that patent has unitary effect;