A recent post, titled Two Recent Articles on Injunctions, noted a recent article by Christian Heinze discussing the diverging interpretations of the CJEU’s Phoenix Contact decision by the Regional Courts in Düsseldorf and Munich. That article also cited a recent paper by Martin Stierle, which I have now read. This article, titled Provisional measures and the risk of patent invalidity—Phoenix Contact and the German approach to interlocutory injunctions, 17 JIPLP 962 (2022), will be helpful for English-speaking readers to get a better feel for German practice pre-Phoenix Contact, and for how German courts may apply that decision in the coming months. Professor Stierle suggests, inter alia, that “German courts can continue to check whether a patent withstood contradictory proceedings before the interim proceedings if this aspect is just one factor among others used in a balancing test,” and he notes several other potentially relevant factors. Here is the abstract:
The Regional Court, Munich I referred the German practice in proceedings for interlocutory injunctive relief in cases of patent infringement to the Court of Justice of the European Union (CJEU). The referral and the preliminary ruling by the CJEU triggered a controversial discussion in the German patent community. This article explains the background to these discussions and addresses the uncertainties as to whether ‘Phoenix Contact’ will have an impact on the German practice of granting interlocutory injunctions.
The Heinze article also notes Professor Stierle’s commentary on Phoenix Contact, in German, in Mitteilungen der deutschen Patentanwälten 6/2022, pp. 277-79. I will also note a short article by Stephan Husemann titled Aktuelle Rechtsprechung zur einstwiligen Verfügung in Marken- und Patentsachen (“Recent Case Law on Preliminary Injunctions in Trademark and Patent Cases”), published in Mitteilungen der deutschen Patentanwälten 7-8/2022, pp. 317-20, which briefly discusses Phoenix Contact, among other matters.