The European Court of Justice (ECJ) has ruled that a preliminary injunction for patent infringement cannot be denied based on the patent’s failure to prove its validity in opposition or nullity proceedings (ECJ, Apr. 28, 2022 – C-44/21).
Namely, it was held that Article 9(1) of Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights (EU Directive 2004/48/EC) must be interpreted as precluding a national case law according to which the grant of provisional measures for infringement of patents is in principle refused if the patent at issue has not survived at least first instance opposition or nullity proceedings. The contrary case law of the Munich Higher Regional Court establishes a requirement which deprives Art. 9(1) EU Directive 2004/48/EC of any practical effectiveness.
The decision now issued by the ECJ is based on a question referred by the LG München I. The referral of the LG Munich I (21 O 16782/20) to the ECJ appears to be an appeal by the chamber of the LG Munich I, which considered itself unreasonably harassed by the overruling appeal decision of the lower-ranking OLG Munich (6 W 1146/20).
In fact, the ECJ decision now states that the lower court (here: the LG München I) is deprived of the possibility to order a provisional measure in accordance with the provision of Art. 9(1) EU Directive 2004/48/EC in order to put an immediate end to the infringement of the patent at issue, which it considers to be valid and infringed.
The present ruling thus strengthens the rights of patent owners, as a hurdle to enforcing rights arising from a patent by way of preliminary injunction has now been removed.
Due to a large number of successfully conducted preliminary injunction proceedings, MSP can provide you with profound knowledge especially in the field of preliminary legal protection and support you in securing and enforcing your rights. Please feel free to contact us without obligation.