Tilman Pfrang, LL.M. | 28th October 2024
Chapter 1: Timing of Auxiliary Requests in Munich
The Munich Central Division found that auxiliary requests submitted after the closure of written proceedings are too late, even if presented as an immediate reaction to a finding of the Court of Appeal in a parallel case. Further, the Central Division clarified that international jurisdiction must always be examined by the court not withstanding whether or not the parties raise this issue timely. Last, the Central Division did not stay the revocation action despite of a quite matured German revocation proceedings.
Chapter 2: Group Defence in Düsseldorf
The Local Division Düsseldorf addressed how multiple defendants can independently manage their defence in patent infringement cases. On the downside: If a defence strategy of any defendant includes that the patent being allegedly infringed is invalid, such defendant is required to file a counterclaim for the patent’s annulment. On the plus side: The co-defendants may jointly file such revocation action.
Chapter 3: The Court of Appeal – Understanding “Frontloaded” Procedures
The CoA clarified that the idea of front-loaded proceedings, which aims to have parties present comprehensive cases from the start, does not preclude them from further developing their arguments or submitting additional evidence as the proceedings evolve. As a general rule, the Court of Appeal does not issue cost orders in branched-off proceedings that do not conclude the action. Instead, the costs are assessed at the end of the main proceedings, considering the overall outcome and the parties’ success or failure, as per Article 69 of the UPCA.
Chapter 4: Interim Measures by the Court of Appeal
The CoA found the subject matter of claims 1 and 13 inventive, underscoring the lack of “incentive/motivation” in the prior art. The Court exercised discretion in admitting new arguments regarding the prior art that were not accepted in the first-instance proceedings due to their late submission. As a general rule, submissions after the conclusion of oral hearings are not considered in the court’s decision-making process. Also as a general rule, the timeframe for requesting a Preliminary Injunction starts when the claimant becomes aware or should have been aware of the infringement. Last, the CoA clarified that irreversible damage is not necessary for granting preliminary injunctions, focusing instead on the balance of interests between the patent holder and the alleged infringer.