Law applied:
ZPO § 263,
ZPO § 264 No. 2,
ZPO § 294 para. 1,
ZPO § 533,
ZPO § 920 para. 2,
ZPO § 935, § 936,
ZPO § 940,
PatG § 139,
UWG § 4 No. 3;
Enforcement Directive Art. 3 para. 2, Art. 9;
EU Charter of Fundamental Rights (CFR Charter) Art. 16, Art. 17 para. 2
Decision keyword:
Hair care device
Summary:
- In the case of an application for an injunction for alleged patent infringement, a balancing of interests must be carried out as part of the grounds for the injunction. In the event of an attack on the legal validity of the patent (which has occurred or is expected to occur in the near future), the infringement court must examine whether the (future) legal validity of the injunction patent appears sufficiently secure, i.e. make a prognosis as to whether the patent will probably prove to be legally valid in the proceedings.
- The "Phoenix Contact/Harting" decision of the ECJ (GRUR 2022, 811) does not contradict this. The presumption of validity established by the ECJ does not give rise to the assumption that the grounds invoked against the validity will not prevail, i.e. that the patent will also prove to be legally valid in the future in the event of an attack on the validity of the patent.
- If the infringement court cannot convince itself of the future legal validity of the patent, taking into account the arguments of both parties, the remaining doubts in the context of the balancing of interests are generally to the detriment of the applicant, unless, due to special circumstances, the interests of the creditor in an immediate cessation of the disputed conduct are nevertheless to be valued higher than the interests of the defendant in an undisturbed continuation of the possibly objectively unlawful conduct. The case groups established in the case law of the higher regional courts can be used here, although this is not an exhaustive catalog of exceptions. Rather, what is always required is a comprehensive weighing of the interests of both parties based on the circumstances of the individual case.
- The fact that the injunction patent has survived first instance opposition or nullity proceedings is not a prerequisite for issuing a preliminary injunction. However, without a first-instance decision on the validity of the patent or a qualified indication from the Federal Patent Court, experience has shown that it will be difficult for the infringement court to make a sufficiently reliable prognosis about the future validity of the patent in injunction proceedings. Nevertheless, it must examine the probable legal status in each individual case. Doubts as to whether the patent will prove to be legally valid are dispelled in particular if the objections raised against the legal validity are clearly unfounded even in the summary examination (which is only possible in injunction proceedings).
Higher Regional Court Munich, final judgment of October 12, 2023 - 6 U 2570/23 e
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