- In patent litigation, the reasons for
an injunction necessary for the issuance of a preliminary
injunction generally require that the validity of the
patent-in-suit may clearly be assessed in favor of the
The question whether the validity of a patent-in-suit is sufficiently certain needs to be assessed based on the standard of a high probability. This may generally only be assumed if the patent-in-suit has already survived first instance opposition or nullity proceedings or if an exception applies (change of previous case law of Higher Regional Court of Munich, judgement of July 26, 2012, case 6 U 1260/12, BeckRS 2012, 16104; following case law of Higher Regional Court of Duesseldorf, judgment of December 14, 2017, 2 U 17/18, BeckRS 2017, 142305, and Higher Regional Court of Karlsruhe, judgment of September 23, 2015, 6 U 52/15, GUR-RR 2015, 509 – Ausruestungssatz).
- A violation of the defendant's right to be heard in the first-instance proceedings due to a tightly scheduled procedure can be cured by further proceedings and remains unpunished insofar as the defendant had sufficient opportunity to deal with the infringement issue and the validity of the patent-in-suit and to present its case prior to the second-instance hearing.
- A utility model, which is an
unexamined intellectual property right, generally does not form a
suitable basis of a preliminary injunction.
Facts of the case
Only 5 days after the grant of the patent-in-suit, the plaintiff claimed injunctive relief from the defendant for patent infringement by way of preliminary injunction proceedings.
The oral hearing on the request for a preliminary injunction before the Regional Court of Munich I took place only 10 days after the request had been filed.
The Regional Court issued the requested preliminary injunction, finding: ... Read the full article here.
Findings of the Court
- The Higher Regional Court of Munich
upheld the first-instance judgment in so far as it found a claim
for injunction. However, in the opinion of the Higher Regional
Court, the preliminary injunction had to be revoked because there
was no reason for a preliminary injunction.
In express deviation from its previous case law – and in accordance with the case law of the Higher Regional Courts of Duesseldorf and Karlsruhe –, the Higher Regional Court of Munich now takes the legal view that ... Read the full article here.
The present decision is in the context of the case law of the Higher Regional Courts of Duesseldorf and Karlsruhe, which has become established case law there in the past few years. According to this case law, a sufficiently certain validity of the patent-in-suit, a requirement for the issuance of a preliminary injunction, can generally only be assumed if ... Read the full article here.
*LINK to source: Judgment of the Higher Regional Court of Munich, December 12, 2019 – Case 2 U 4009/19
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