Preliminary Injunction´s EuGH Decision

EuGH, 28.04.2022 - C-44/21  

With the ECJ ruling of April 28, 2022, it was decided that a preliminary injunction can be issued in patent infringement cases even if the patent in dispute has not yet been proven to be legally valid in two-sided opposition or nullity proceedings.

According to previous case law, in order for a preliminary injunction to be issued, the asserted patent also had to have been defended in two-sided proceedings for legal validity. Only in that case, the legal validity was sufficiently secured.

The Munich Regional Court had questioned this common practice of German courts and had it examined whether the strict requirements were in line with European law. The ECJ has now clarified that such a high hurdle for legal validity may not be required.

The DECISION OF THE COURT (Sixth Chamber) OF April 28, 2022(*) STATES:

“”Reference for a preliminary ruling – Intellectual property – Directive 2004/48/EC – Article 9(1) – European patent – Provisional measures – Power of national courts to order a provisional measure to prevent an imminent infringement of an intellectual property right – National case-law refusing to grant provisional measures where the patent at issue has not survived at least opposition or revocation proceedings at first instance – Obligation to interpret in conformity with European Union law.”

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