The Munich Regional Court has referred to the ECJ the question of whether the common German practice of issuing preliminary injunctions only after a granted patent has previously been confirmed in validity proceedings is compatible with the Enforcement Directive. The facts of the case are preceded by a patent dispute concerning EP 2 823 536 between patent owner Phoenix Contact and Eisenführ Speiser client Harting. Phoenix filed an application with the Munich Regional Court for a temporary injunction on the grounds of alleged patent infringement.

The Regional Court has stayed the proceedings and referred them to the ECJ by order dated January 19, 2020. Based on the current case law of the Munich Higher Regional Court, the judges do not see themselves in a position to issue the preliminary injunction requested by Phoenix. After years of the Munich courts granting preliminary injunctions even for patents whose legal validity had not previously been confirmed by adversarial proceedings, the Munich Higher Regional Court abandoned this case law at the end of 2019. The Higher Regional Court has thus followed the practice of the Düsseldorf courts, which, at least as a rule, only issue preliminary injunctions in patent cases if the IP right has undergone bilateral validity proceedings. The reason given for this is that the complex examination of the legal status cannot be carried out with the necessary depth in summary summary proceedings.

However, the Munich Regional Court considers this to be contrary to EU law, citing Art. 9 (1) of the Enforcement Directive 2004/48/EC, and has therefore referred the matter to the ECJ for a preliminary ruling. In doing so, the Regional Court is putting the previous case law of the Munich Higher Regional Court and the patent courts in Mannheim and Düsseldorf to the test.

The long-standing client Harting is represented by the ES team of Patent Attorneys Klaus Göken and Jochen Unland (Bremen) and Attorneys-at-Law Tilman Müller and Sönke Scheltz (Hamburg) in this matter.

JUVE Patent reports here.