Germany: Forum shopping is becoming more difficult

Managing IP is part of Legal Benchmarking Limited, 1-2 Paris Gardens, London, SE1 8ND

Copyright © Legal Benchmarking Limited and its affiliated companies 2026

Accessibility | Terms of Use | Privacy Policy | Modern Slavery Statement

Germany: Forum shopping is becoming more difficult

Sponsored by

maiwald-logo-cropped.PNG
手のひらを前に出すビジネスマン

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.

more from across site and SHARED ros bottom lb

More from across our site

Top talking points also included news of an appellate ruling concerning ‘Pisco’ and Indian drugmakers gearing up to launch generic versions of Ozempic as Novo Nordisk’s patent expires
The government’s keenly awaited view on AI and copyright has positive themes but leaves rights owners wanting, says Rebecca Newman at Addleshaw Goddard
While IP Australia’s updated manual could be favourable to computer-implemented inventions, stakeholders would like to see whether a consistent and reliable standard is followed during actual examination
UKIPO will remain a competitive option as long as efficient service continues
A future opt-out has not been ruled out, but practitioners warn that the UK could fall behind in the AI race
US patent lawyers say they are increasingly advising clients on China strategies as corporations seek to gain leverage in enforcement, licensing, and supply chain management
Mike Rueckheim reunites with 12 of his former Winston & Strawn colleagues as King & Spalding continues aggressive hiring streak
As global commerce continues to expand through e-commerce platforms and digital marketplaces, protecting brands has become a growing challenge for organisations worldwide. Counterfeiting, intellectual property infringement, and online brand abuse are increasing across industries, making brand protection strategies a critical priority for businesses.
Henrik Holzapfel and Chuck Larsen of McDermott Will & Schulte explain why a Court of Appeal ruling could promote access to justice and present a growth opportunity for litigation finance
A co-partner in charge says the UK prosecution teams are a ‘vital’ part of the firm’s offering, while praising a key injunction win
Gift this article