Thursday, March 2, 2023

Munich Court Grants Motion for Preliminary Injunction Filed Two Days After Patent Grant

The case is LG München I, Judgment of Oct. 27, 2022, 7 O 10295/22-Bortezomib, available in full online here and excerpted in the 3/3023 issue of GRUR pp. 152-55, with commentary by Thomas Musmann (pp. 155-57).  The case involves a pharmaceutical patent, and the result here is consistent with other recent judgments of the Munich court to the effect that issued patents come cloaked with a presumption of validity, which the defendant must rebut before the burden shifts back to the patentee to substantiate validity.  Here, the court doesn't perceive the presumption to have been rebutted; and also notes, among other matters, in weighing the parties' interests, that the defendant was aware of an earlier-filed utility model (for which the patentee had unsuccessfully sought a preliminary injunction). 

Musmann states that this and other decisions of the Munich court interpreting the CJEU’s Phoenix Contact judgment effectively "invite" practitioners to come to Munich for preliminary injunctions, and if I understand correctly he argues that best practice would call for a comprehensive balancing of interests. 

For previous commentary on this blog relevant to these points, see here (discussing a paper by Martin Stierle) and here (second paragraph, discussing a paper by Christian Heinze).

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Next week is spring break at the University of Minnesota, and I plan to take a weeklong blogging break during this time.


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