Binding of preliminary injunctions to probation in validity proceedings unlawful, CJEU (Ref.: C-44/21, April 28, 2022)
In the past, some higher regional courts, such as the Munich Higher Regional Court (OLG), have ruled that it is not sufficient for the issuance of a preliminary injunction in the case of patent infringement that the patent asserted has been granted by the granting authority after detailed examination. The issuance of interim measures for patent infringement was generally denied if the patent in question had not survived at least first instance opposition or nullity proceedings.
The District Court of Munich (LG I) considered this interpretation to be unlawful and had this interpretation reviewed.
CJEU (Ref.: C-44/21) has now ruled (April 28, 2022) that a preliminary injunction in patent infringement cases can be issued even if the patent in dispute has not yet proven itself in first instance opposition or nullity proceedings.