Damages for a Wrongly Granted Preliminary Injunction Under German Law

One of the topics I discuss in my forthcoming book Wrongful Patent Assertion:  A Comparative Law and Economics Analysis is whether a patent owner who obtains a preliminary injunction of the basis of a patent that is subsequently determined to be invalid or not infringed should have to compensate the defendant for any losses the latter suffers during the period it was excluded from the market.  Although the CJEU’s decision in Bayer Pharma AG v. Richter Gedeon Vegyészeti Gyár Nyrt, Case C-688/17 (CJEU 2019), seemed to indicate that holding the patentee would be liable only if it obtained the preliminary injunction in bad faith, its subsequent decision in Mylan AB v. Gilead Sciences Finland Oy, [1] Case C-473/22 (CJEU 2024), upheld member states’ authority to hold patentees strictly liable, as long as the court has authority to consider the totality of the circumstances, including the fault if any of either party, before rendering a decision.  (See previous post here.)  Anyway, my understanding was that Germany was one of the E.U. member states that applied a strict liability standard to this issue.  I was therefore surprised this morning when I read Konstanze Richter’s article on JUVE Patent titled No damages for Glenmark in battle over Mundipharma’s Targin.  The article discusses a decision of the Düsseldorf Higher Regional Court affirming a 2024 decision of the Düsseldorf Regional Court denying compensation, where the plaintiff was not at fault in seeking a preliminary injunction.  I was able to find the Regional Court decision on openjur.de, but I don’t think the Higher Regional Court decision is publicly available yet (or at least, I haven’t found it).  The lower court decision and the JUVE article both note the Higher Regional Court’s 2023 decision in a case involving Mylan and Teva, in which then-judge Thomas Kühnen awarded Mylan lost profits as a result of its having been excluded from the market during a period of time when Teva was enforcing a preliminary injunction relating to one of its glatiramer acetate divisionals.  In that case, decided just prior to the CJEU’s Mylan decision, the court held that it didn’t have to decide whether the strict liability rule as embodied in article 945 of Germany’s Code of Civil Procedure (ZPO) was in comformity with E.U. law, because in the court’s view Teva was at fault.  Here, the lower court stated that in the Teva decision “the Higher Regional Court only examined and ultimately affirmed such fault so that it could leave aside the question of the conformity of strict liability under § 945 with European law against the background of the Enforcement Directive.  Such a special case is not at issue here.  In addition, the corresponding considerations are overtaken by CJEU” (citing Mylan v. Gilead) (para. 109).

I'm not sure how to interpret this, but it may be that this case is distinguishable from the common preliminary injunction situation because the claimant here had agreed that it would cease marketing its allegedly infringing product, albeit without prejudice to subsequently pursuing a claim for damages.  (The patentee nevertheless obtained two preliminary injunctions from the German courts, see lower court opinion para. 40.)  So maybe in this setting, the claimant is not entitled to damages for a wrongly-issued preliminary injunction unless the defendant is at fault, but normally would be strictly liable?  Or is this case signaling a more general departure from the strict liability standard?

If any readers have more information on this issue, I’d be interested in hearing from you.

Update:  I see now that I misunderstood the JUVE Patent article.  The decision at issue--OLG Düsseldorf, Judgment of April 30, 2025, I-2 U 45/24--is available here.  It held that the patentee was not liable without fault for having sent a warning letter that induced the generic drug manufacturer to delay the launch of the latter's product.  This specific case did not involve a preliminary injunction, although there was another case in which a different court had entered preliminary injunctions, involving the same drug, against other parties.  Moreover, the BGH in March reaffirmed the general rule that a wrongly-enjoined party can recover its lost profit under a strict liability rule.  See BGH, Judgment of March 13, 2025,  IX ZR 201/23.