Preliminary injunctions set to become more frequent after CJEU ruling

The Court of Justice of the EU has on 28 April 2022 issued a ruling that overturns longstanding German jurisprudence that has up to now made it very difficult for patentees to obtain preliminary injunctions against alleged infringers, if the validity of the patent in question has not previously been tested in opposition or validity proceedings.

The case concerned a patent for a plug connector comprising a protective conductor bridge.  The patent had been granted by the EPO and opposition proceedings were pending.  However, the referring court, the Landgericht München, was of the preliminary view that the patent was both valid and infringed. In an admirably succinct judgment, the CJEU held that national case-law prohibiting the grant of preliminary injunctions, where validity of the patent in question had not first been tested, was inconsistent with Article 9(1) of the IP Enforcement Directive, which requires member states to provide for interlocutory injunctions to prevent threatened or alleged infringements.

The result is that the German courts must in future change their approach to the grant of preliminary injunctions.  This does not necessarily mean that the absence of any prior challenge to validity cannot be taken into account but it does mean that this can no longer be an absolute bar to the award of preliminary injunctions.

Patentees and practitioners will watch with interest to see how German jurisprudence on preliminary injunctions now develops.  For practitioners in other jurisdictions, this ruling on the approach to the award of preliminary injunctions will not come as a great surprise.  In the United Kingdom, for example, it has long been the practice that preliminary injunctions should be used to ensure that a just result can be delivered at trial, which may well mean that a preliminary injunction should be awarded in circumstances where validity is very much in issue.

Finally, we can also be sure that the new Unified Patent Court will, once it starts operation, take this CJEU ruling into account when developing its own jurisprudence on the grant of preliminary injunctions.