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

In the second of a two-part article, Gabrielle Faure-André and Stéphanie Garçon at Santarelli unpick EPO, UPC and French case law to assess the importance of clinical development timelines in inventive step analyses
Public figures are turning to trademark protection to combat the threat of AI deepfakes and are monetising their brand through licensing deals, a trend that law firms are keen to capitalise on
News of Avanci Video signing its first video licence and a win for patent innovators in Australia were also among the top talking points
Tom Melsheimer, part of a nine-partner team to join King & Spalding from Winston & Strawn, says the move reflects Texas’s appeal as a venue for high-stakes patent litigation
AI patents and dairy trademarks are at the centre of two judgments to be handed down next week
Jennifer Che explains how taking on the managing director role at her firm has offered a new perspective, and why Hong Kong is seeing a life sciences boom
AG Barr acquires drinks makers Fentimans and Frobishers, in deals worth more than £50m in total
Tarun Khurana at Khurana & Khurana says corporates must take the lead if patent filing activity is to truly translate into innovation
Michael Moore, head of legal at Glean Technologies, discusses how in-house IP teams can use AI while protecting enforceability
Counsel for SEP owners and implementers are keeping an eye on the case, which could help shape patent enforcement strategy for years to come
Gift this article