Today, I am going to talk about the practical relevance of preliminary injunctions (PIs) for patent infringement at the UPC.
The respective national case law is all but uniform. In Dutch patent litigation, for example, PIs are very relevant. In contrast, they hardly ever play a role in the UK. In France, their importance has been increasing recently but is still far from day-to-day practice. In Germany, the landscape varies; different instance courts have different practices: while the courts in Düsseldorf and Mannheim are quite reluctant to grant PIs for patent infringement, the courts in Munich and Hamburg generously grant PIs in many cases, not just in the pharma sector but in many other sectors as well.
At European Union level, there is not much related patent case law yet. However, a recently widely reported referral of the first-instance court in Munich, Germany, led the Court of Justice of the European Union (CJEU) to provide some guidance on an important question in April 2022, namely whether or not a successful PI request requires a battle-tested patent. The CJEU found that a battle-tested patent is not required, and more precisely, that national case law, according to which a PI is generally to be refused if the examined and granted patent has not been confirmed again by first-instance opposition or invalidity proceedings, is irreconcilable with Art. 9(1) of the Enforcement Directive. This finding is currently triggering a renaissance of PIs in national patent litigation – at least at courts which have always been open to a significant PI practice like Munich, Hamburg and the Hague – and is thus expected to become similarly relevant before the upcoming UPC.
Just like in national litigation, PIs are available at the UPC based on European black letter law. Moreover, the UPC will have local divisions in Munich, Hamburg and the Hague. At these local divisions, two out of three of the sitting judges will be national judges. It is probably fair to assume that the national judges will somehow import their national view on PI issues to the UPC, at least in the early days. For that reason alone, the local divisions in Munich, Hamburg and the Hague are likely to seriously consider issuing PIs for patent infringement in practice, even when it comes to freshly granted patents which have not been battle-tested yet. Further, the relatively strict German case law on the urgency requirement may well be softened to align with the rather generous Dutch practice.
And finally, maybe most importantly: A significant PI practice allows for creating case law and appellate decisions quickly and thus provides the benefit of some predictability and reliability which is important for an untested, new court. It also allows the various local divisions to compete with each other in attracting patent owners. Such court competition will inevitably take place as many of the UPC judges are appointed for part-time positions with a time limit and must be re-appointed to be entitled to pension claims. Thus, it seems to be the logical consequence that many judges at the UPC will adopt a patentee-friendly approach.
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