Oberster Gerichtshof, Urteil vom 19/11/2009 17 Ob 13/09z
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2009:RS0125407
Date: 2009-11-19
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82009AT1119(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiffs are two companies. The first plaintiff is the exclusive licence owner of a European patent, and the second plaintiff is a sublicensor. They filed a claim against the defendant before the Handelsgericht of Vienna (AT) because the defendant had allegedly infringed on the patent rights in Austria of the plaintiffs with its intent to introduce a medicine with a certain chemical formula into the Austrian market. The plaintiffs requested, inter alia, injunctive relief against the manufacture and sale of the medicine in question. The defendant asserted that German and English courts had already adjudicated the invalidity of the disputed claims. Whereas the Handelsgericht dismissed the request for injunctive relief, the court of appeal granted the relief. In response to that decision, the defendant appealed to the OGH (AT).
The OGH finds the appeal of the defendant is in its essence without merit. Indeed, there are judgments in this case from the German Bundespatentgericht and the English High Court that have declared the European patent under dispute to be invalid. These judgments, however, are not formally binding on the OGH. Such a binding judgment can arise only from the ipso iure recognition of Article 33 Brussels I Regulation. The judgments of the other Member States were also not issued between the same parties. Moreover, the objects of the judgments are different, as the European patent is a bundle of patents for the individual Contracting States whereby the individual patents are connected only by the common grant. The judgments issued in other Member States could therefor only declare the invalidity for their own States. Alternatively, a recognition with such effects would founder on Article 35(1) Brussels I Regulation, as Article 22(4) establishes an exclusive jurisdiction.