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DE – Will the German automatic injunction live forever?

13 Oct 2022

Will the German automatic injunction live forever? By Tobias Wüttke, Meissner Bolte

The Regional Court Düsseldorf clarifies in a milestone decision (docket no. 4c O 18/21 of 7 July 2022) that the new proportionality defense pursuant § 139 (1) clause 3 of the revised German Patent Act is not available for unwilling licensees.

A. The gist of the decision
The bottom line of the Court’s first instance judgment which is not yet final can be summarized as follows: where defendants invoke that an injunction would lead to disproportionate hardships for third parties (= public interest argument), a compulsory license pursuant § 24 German Patent Act must be sought by the alleged infringer with the Federal Patent Court in the first place. The new proportionality defense pursuant § 139 (1) clause 3 of the revised German Patent Act is subsidiary to such compulsory license. In other words: § 24 German Patent Act is considered as being lex specialis to § 139 (1) clause 3 German Patent Act.

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