Two Recent Articles on Injunctions

1.  Zhang Weijun and Zhang Xiaoquan have published a paper in China Patents and Trademarks No. 4, 2022 (pp. 87-97), titled Application of the Proportionality Principle to Injunctive Relief in German Patent Act and its Enlightenment to China.  The authors discuss the recent amendment of the German Patent Act that expressly permits courts to stay injunctive relief on proportionality grounds, and the arguments for and against adopting a similar rule in China.  As they note, there have been some Chinese decisions and commentary suggesting that courts in China already do have the power to deny injunctions in some specific instances (including public interest), but not very many; moreover, “the restriction of injunctive relief for the sake of the public interest is not an equivalent to the retraction thereof by the ‘proportionality principle’.”  Thus, the authors state, current Chinese practice does “not comprehensively take into account the factors that are considered in the application of the proportionality principle to the restriction of injunctive relief,” and they argue that it should.

2.Christian Heinze has published an article titled Der Rechtsbestand des Patents im einstweiligen Verfügungsverfahren nach EuGH „Phoenix Contact‟:  Zugleich Besprechung von LG Düsseldorf  „MS-Therapie III‟ und LG München I „Fingolimod‟ ("The Validity of Patents in Preliminary Injunction Proceedings after the CJEU Decision 'Phoenix Contact':  As Well as Case Law from the Düsseldorf Regional Court in 'MS-Therapy III' and the Munich Regional Court in 'Fingolimod'”), GRUR 24/2022, pp. 1795-99.  To put the matter in context, for a time, and subject to various exceptions, German courts generally denied requests for preliminary relief unless the patent in suit had previously withstood an opposition or validity challenge.  Last year in the Phoenix Contact case, however, the CJEU ruled that there is no general rule precluding the entry of preliminary relief where the patent in suit has not yet survived a nullity challenge, and in the course of its decision stated that “European patents enjoy a presumption of validity from the date of publication of their grant.”  (See my previous post here.)  The author briefly notes the varying views of German commentators regarding how and to what extent Phoenix Contact changes German practice, and discusses two recent opinions that interpret the decision somewhat differently—with the Düsseldorf court stating that the CJEU didn’t mean there is a presumption (of validity) “in the legal sense,” and the Munich court adopting a sort of burden-shifting approach.  If I understand correctly, however, the author argues that courts should and will continue to consider whether there has been a validity challenge, or a preliminary assessment of validity, along with other factors in some sort of balancing of interests—and that Phoenix Contact heralds a “certain shift” in favor of patent holders.  The decisions themselves are excerpted beginning at p. 1806 of this issue.