Dusseldorf Appeal Court, Germany, 29. April 2010, Case No. I-2 U 126/09
The Dusseldorf Appeal Court had to decide on an appeal regarding the first instance refusal of a preliminary injunction request based on a patent.
The Dusseldorf Appeal Court upheld the first instance decision and refused the pre-liminary injunction request since the validity of the patent was uncertain in view of the court. In this context, the court indicated that in preliminary injunction proceedings, the validity of the patent needs to be sufficiently certain. If the patent is subject to opposition or subject to nullity proceedings or if it is likely that such proceedings are to be initiated, the requesting party has the burden of proof to show to the court that the invalidity objections are unjustified. The mere fact that the patent was granted is not sufficient in this regard. The validity of the patent is only sufficiently certain if the patent has already survived first instance opposition or nullity proceedings.
Read the decision (in German) here.
Read the summary (in English) here.
Headnote and summary: Tilman Mueller-Stoy