07. Nov 22

ECJ strengthens interim relief measures in patent infringement cases

A company’s creative potential is a cornerstone of its success, which makes it all the more important for businesses to ensure that their intellectual property is effectively protected from copycats.

We at the commercial law firm MTR Rechtsanwälte note that in order to ensure comprehensive protection of intellectual property, a subset of intellectual property law dedicated to the protection of industrial property exists that covers a collection of industrial property rights spanning a number of legal fields, most notably trademark law, antitrust and competition law, copyright law, and patent law.

The latter is concerned with the protection of technical inventions. By registering a patent, the patent holder acquires the exclusive right of use and exploitation. And it is now clear from a recent ruling by the European Court of Justice (ECJ) from April 28, 2022 (case ref.: C-44/21) that a preliminary injunction in response to a patent infringement cannot be denied on the grounds that the validity of the patent in question has not yet been confirmed, at the very least, by a decision at first instance in opposition or invalidity proceedings. Measures to obtain interim relief at short notice in patent disputes in Germany will now be more enforceable as a result.

The German patent courts have been rather reluctant to rule on questions of interim legal protection in patent cases. Their frequent reluctance to grant provisional measures stems from an uncertainty surrounding whether the patent concerned is legally valid. This approach has now been rejected by the ECJ. The court sought to clarify that the case-law of several of Germany’s higher regional courts (Oberlandesgerichte) was contrary to EU law insofar as it saw the courts generally deny preliminary injunctions in patent infringement cases where the validity of the patent in question had not yet been confirmed by a decision at first instance in opposition or invalidity proceedings.

The practice of several of these courts had previously been to assume that it was not sufficient for a patent to have been granted by the competent patent office for a preliminary injunction to be issued in the event of an alleged patent infringement. In addition to a technical assessment of patentability by the patent court, they required that confirmation of patentability be provided.

Munich’s regional court – the Landgericht München – considered this approach to be contrary to EU law and referred the matter to the ECJ. The latter has now concluded that the case-law of the higher regional courts was indeed contrary to EU law and incompatible with Article 9(1) of the Enforcement Directive 2004/48. According to the ECJ, while the directive is meant to ensure a high level of protection for intellectual property, it had been rendered practically unenforceable by the case-law of the higher regional courts.

Lawyers with experience in the field of intellectual property law, specifically the protection of industrial property, can advise on matters pertaining to patent protection, trademark law, antitrust and competition law, as well as copyright law.

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