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Germany: Forum shopping is becoming more difficult

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In the future, it will be more difficult to obtain an injunction for patent infringement through preliminary injunction proceedings.

Generally, 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 assessing the validity of a patent.

Pursuant to the case law of the OLG Düsseldorf and OLG 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 courts 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. 

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 follow the case law of the OLG Düsseldorf and the OLG Karlsruhe.

This lessens the chance of patent holders enforcing their patents by way of interim infringement proceedings. If the infringed patent has not undergone opposition or nullity proceedings, the patentee until now still had a chance to convince at least the courts in Munich that the validity of the patent is nevertheless sufficiently secured. 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, 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 holders enforcing their claims by way of preliminary injunction proceedings with respect to patents that were so far not challenged in opposition or nullity proceedings.

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