The Munich Higher Regional Court (OLG Munich) follows now the practice of OLG Düsseldorf and OLG Karlsruhe regarding preliminary injunctions.
In the future, it will be more difficult to obtain an injunction for patent infringement through preliminary injunction proceedings.
As a general rule, in preliminary injunction proceedings, the plaintiff must prove that there are no serious doubts regarding the validity of the patent. In the past, the Higher Regional Courts in Germany have applied different standards for assuming the legal validity of a patent.
Pursuant to the case law of the Higher Regional Courts in Düsseldorf and Karlsruhe the patent proprietor was (at least generally) only able to obtain a preliminary injunction if the validity of the patent had been examined in opposition or nullity proceedings.
The judges in Munich have so far been more patentee-friendly, stipulating that it would be sufficient for the patent owner to demonstrate that an attack on the validity of the patent would likely not be successful. Hence, it was not necessary that the validity of the patent had been challenged and confirmed in validity proceedings
In a recent decision the OLG Munich (judgment of December 12, 2019, Case No 6 U 4009/19) expressly stated that it had abandoned this practice and instead, from then on, would adapt its practice to the case law of the OLG Düsseldorf and the OLG Karlsruhe.
This lessens the chance of patent owners enforcing their patents by way of preliminary injunction proceedings. If the infringed patent right has not undergone opposition or nullity proceedings, the patentee until now could still hope to convince at least the courts in Munich that the validity of the right is nevertheless sufficiently secured in another way. Now that the OLG Munich has adopted the line of the other Higher Regional Courts in Düsseldorf and Karlsruhe, the chance of winning a preliminary injunction based on a patent that has not been challenged and confirmed has, to say the least, become rather slim.
On the one hand, the recent decision of the OLG Munich leads to more legal certainty since all major Higher Regional Courts now apply the same principles to patent disputes when evaluating whether the validity of a patent can be regarded as sufficiently confirmed to allow for preliminary injunction proceedings. On the other hand, the unified case law renders forum shopping for the patent owner less attractive and reduces the chances of patent owners enforcing their claims by way of preliminary injunction proceedings with respect to patents that were so far not challenged in opposition or nullity proceedings. In a way, this arguably puts the patentee at the mercy of someone else challenging their patent, since only after surviving such an attack, may the patent be used as strong basis to initiate preliminary injunction proceedings.