According to current German practice, a preliminary injunction can - amongst other requirements - only be granted if the patent has completed its "baptism of fire".
This means that the patent in question must have survived first instance opposition proceedings before the DPMA or the EPO or revocation proceedings before the Federal Patent Court. This practice is established e.g. by the Higher Regional Courts of Düsseldorf, Karlsruhe, Hamburg and Munich and limits the amount of patents eligible for successfully claiming a preliminary injunction.
The Munich District Court has now launched a referral to the CJEU questioning whether this practice is in line with Art. 9 (1) of the Enforcement Directive EC2004/48. According to the press release of the Munich District Court, it has to be considered that revocation or opposition proceedings are on one hand long-term proceedings, which would have to be completed before claiming a preliminary injunction and - on the other hand - the existence of such precursor proceedings is not under the control of the claimant.
Several higher regional courts require that - with few exceptions - a confirmation of patentability is provided in addition to the substantive examination of patentability in the granting procedure by the patent office. This is because a secure legal existence can only be assumed if the patent has already proven to be legally valid in opposition/appeal proceedings before the European Patent Office (EPO) or the Federal Patent Court in nullity proceedings.
https://www.justiz.bayern.de/gerichte-und-behoerden/landgericht/muenchen-1/presse/2021/1.php
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