German court calls for better enforcement of preliminary injunctions in patent infringement case

Managing IP is part of Legal Benchmarking Limited, 4 Bouverie Street, London, EC4Y 8AX

Copyright © Legal Benchmarking Limited and its affiliated companies 2024

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

German court calls for better enforcement of preliminary injunctions in patent infringement case

Sponsored by

maiwald-logo-cropped.PNG
joanna-kosinska-pbgy3ptga4a-unsplash.jpg

Christian Meyer of Maiwald looks at the ineffective enforcement of a preliminary injunction in a German case concerning the requirements for a bank guarantee as security

The Higher Regional Court of Düsseldorf specified the requirements for a bank guarantee as a security for enforcement of a preliminary injunction (decision of June 25 2020, docket no. I-2 U 51/19).

In the underlying case, the injunction plaintiff first obtained a temporary injunction for patent infringement against the injunction opponent before the Düsseldorf Regional Court, the enforcement of which, as usual in such cases, is dependent on the provision of a security.

In order to enforce an interim injunction, it must be ‘executed’ within one month, otherwise it loses its effect (Section 929 (2) German Code of Civil Procedure). In the case of an injunction issued after oral proceedings, the so-called enforcement period begins with the pronouncement of the judgment. If enforcement is dependent on the provision of security, this must also be rendered and proven within the one-month period.

The injunction plaintiff submitted a surety bond (pursuant to Section 108 p 2 German Code of Civil Procedure) to the injunction opponent within the enforcement period, citing as the sole circumstances for the security the "revocation or modification of the injunction award from the regional court judgment."

In the appeal brought against the Regional Court’s judgment, the opponent invoked, inter alia, the insufficiency of the guarantee submitted. The Düsseldorf Higher Regional Court allowed the appeal and confirmed that the declaration of surety was insufficient. The court explained that the above-mentioned circumstance for the security was common for provisionally enforceable titles with respect to the principal claim and also sufficient in terms of content. However, due to the possibility of liability for damages under Section 945 German Code of Civil Procedure, the wording was not sufficient for provisional injunction proceedings, as it did not address the case of a lapse of the executed provisional injunction without cancellation or amendment.

Rather, the required security, if provided in the form of a guarantee, must address all liability scenarios so that no ‘reasonable doubt’ can arise as to the scope of the guarantee.

The present decision makes it clear that, despite the generally existent interest in the prompt enforcement of interim injunctions, sufficient care is required not only in the drafting of the application for an injunction, but also in the context of the subsequent enforcement of the injunction. In this regard, particular attention must also be paid to the wording of the common templates frequently used by banks or savings banks following a corresponding order to issue a declaration of guarantee, to ensure that this is suitable for the specific individual case.

 

Christian Meyer

Principal, Maiwald

E: meyer@maiwald.eu

more from across site and ros bottom lb

More from across our site

A UK government consultation on AI and copyright, a patent blow for Lenovo and a trademark row over cider were among the big talking points this week
Our most popular stories of the year included a rundown of the 50 most influential people in IP, our in-house ones to watch, and UPC news
Awards
It is time to submit nominations for the sixth annual Life Sciences Awards EMEA
Keejeong Kim, who returned to Yulchon after a four-year gap, said he was intrigued by the opportunity to work on neighbouring areas of law to IP
The IP consulting firm hopes to expand its services and outreach with the support of investors VSS Capital Partners and Century Equity Partners
This update includes a ruling from the Court of Appeal, a judgment of the Paris Local Division, news of upcoming hearings, and predictions for 2025
US counsel review the key copyright and trademark trends of 2024, including generative AI disputes and SCOTUS cases
If 2024 is anything to go by, the next 12 months could see more IP firms seek investment opportunities while IP lawyers are increasingly likely to work alongside other functions
Practitioners reflect on the impact of USPTO guidance, as well as PTAB and litigation trends
We discuss Managing IP’s 50 most influential people in IP list and look back on the biggest talking points in the last month
Gift this article