German court calls for better enforcement of preliminary injunctions in patent infringement case

Managing IP is part of Legal Benchmarking Limited, 1-2 Paris Gardens, London, SE1 8ND

Copyright © Legal Benchmarking Limited and its affiliated companies 2025

Accessibility | Terms of Use | Privacy Policy | Modern Slavery Statement

German court calls for better enforcement of preliminary injunctions in patent infringement case

Sponsored by

maiwald-logo-cropped.PNG
joanna-kosinska-pbgy3ptga4a-unsplash.jpg

Christian Meyer of Maiwald looks at the ineffective enforcement of a preliminary injunction in a German case concerning the requirements for a bank guarantee as security

The Higher Regional Court of Düsseldorf specified the requirements for a bank guarantee as a security for enforcement of a preliminary injunction (decision of June 25 2020, docket no. I-2 U 51/19).

In the underlying case, the injunction plaintiff first obtained a temporary injunction for patent infringement against the injunction opponent before the Düsseldorf Regional Court, the enforcement of which, as usual in such cases, is dependent on the provision of a security.

In order to enforce an interim injunction, it must be ‘executed’ within one month, otherwise it loses its effect (Section 929 (2) German Code of Civil Procedure). In the case of an injunction issued after oral proceedings, the so-called enforcement period begins with the pronouncement of the judgment. If enforcement is dependent on the provision of security, this must also be rendered and proven within the one-month period.

The injunction plaintiff submitted a surety bond (pursuant to Section 108 p 2 German Code of Civil Procedure) to the injunction opponent within the enforcement period, citing as the sole circumstances for the security the "revocation or modification of the injunction award from the regional court judgment."

In the appeal brought against the Regional Court’s judgment, the opponent invoked, inter alia, the insufficiency of the guarantee submitted. The Düsseldorf Higher Regional Court allowed the appeal and confirmed that the declaration of surety was insufficient. The court explained that the above-mentioned circumstance for the security was common for provisionally enforceable titles with respect to the principal claim and also sufficient in terms of content. However, due to the possibility of liability for damages under Section 945 German Code of Civil Procedure, the wording was not sufficient for provisional injunction proceedings, as it did not address the case of a lapse of the executed provisional injunction without cancellation or amendment.

Rather, the required security, if provided in the form of a guarantee, must address all liability scenarios so that no ‘reasonable doubt’ can arise as to the scope of the guarantee.

The present decision makes it clear that, despite the generally existent interest in the prompt enforcement of interim injunctions, sufficient care is required not only in the drafting of the application for an injunction, but also in the context of the subsequent enforcement of the injunction. In this regard, particular attention must also be paid to the wording of the common templates frequently used by banks or savings banks following a corresponding order to issue a declaration of guarantee, to ensure that this is suitable for the specific individual case.

 

Christian Meyer

Principal, Maiwald

E: meyer@maiwald.eu

more from across site and SHARED ros bottom lb

More from across our site

The location will be easily accessible for delegates visiting London for the INTA Annual Meeting
In the second instalment of our data-led special reports, Managing IP speaks to the most prolific representatives for REUDs on how they manage their team and filing strategies
Foreign remittance requirements put additional administrative burden on Indian law firms and strain their relationship with foreign associate firms, according to practitioners
IP leaders met in San Francisco this week to discuss patent pools, SEP licensing, and how shifting geopolitics is shaping the future of innovation
View the 2025 Social Impact shortlist celebrating the region's change-makers
News of Elon Musk’s xAI suing OpenAI and the latest statistics from UK’s patent box system were also among the top talking points
The patent pool operator is launching new offerings covering semiconductor technologies amid the rapid adoption of AI and tech
Achim Krebs of HGF and Filip De Corte of Syngenta provide an overview of compensatory term rights for plant protection products around the world
A Full Federal Court ruling on the patent-eligibility of computer-implemented inventions in Australia could pave the way for more filings
In major recent developments, the court ruled in a dispute over washing machines, issued a reimbursement decision, and the Munich Division welcomed a visit from EU officials
Gift this article