Posted: March 27th, 2020
Higher Regional Court of Munich on the requirements for the reasons for a preliminary injunction in patent litigation – change of previous case law (judgment of December 12, 2019 – Case 2 U 4009/19*) – “Leiterklemme”
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 applicant.
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.
The full report can be read here.
Reported by Nadine Westermeyer and Stefan Lieck, Bardehle Pagenberg