Today's quick tip is about preliminary injunction proceedings for patent infringement in Germany.
According to the established case law of the most prominent German appellate courts in Duesseldorf and Karlsruhe, a successful PI request – as a rule – requires a battle-tested patent. That means the patent must have survived first-instance opposition or nullity proceedings. The appellate court of Munich joined the club at the end of 2019, aligning its case law to Duesseldorf and Karlsruhe, and lifted a PI granted by the first-instance Munich court.
On January 19, 2021, the first-instance Munich court retaliated and challenged the appellate courts practice before the CJEU. Specifically, the Munich court referred the question to the CJEU whether the appellate courts' practice to generally reject a PI request in case the patent in suit has not yet survived first instance opposition or nullity proceedings is in line with Art. 9 para. 1 of the European Enforcement Directive. Notably, the first-instance Munich court does not raise the question of what the appropriate alternative test for validity should be. Also, in its referral, the first-instance Munich court does not elaborate on exceptions already accepted in the case law of the mentioned appellate courts.
Thus, it remains to be seen whether the CJEU will be able to provide practically satisfying guidance on this basis. It will probably take 1.5 years from now or longer until an opinion by the CJEU will be available. In the meantime, the Hamburg courts might become the courts of choice for bringing PI requests for patent infringement in Germany as they have not yet aligned with Duesseldorf, Karlsruhe and Munich.
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