Judgment;Summary — ECLI:EU:C:2022:309
Date: 2022-04-28
Language of the case: German
Court formation: Sixth Chamber
Subject matter: Intellectual, industrial and commercial property;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Germany

summary 
examination, or 
- on an exceptional basis, it is unreasonable, due to exceptional circumstances, 
such as the market situation, for example, for the applicant to await the 
outcome of the opposition or invalidity proceedings.’ 
However, none of these exceptions see the light of day in the present case, as they 
are applied so restrictively by the Higher Regional Court, Munich that in 
practice – as in the present case – they remain merely theoretical. It is true that the 
second defendant did participate with its own objections in the grant procedure for 
the patent which is the subject of the injunction; however, according to the case-
law of the Higher Regional Court, Munich (see the decision of 26 November 
2020, Case No 6 W 1146/20; decision does not appear to have been published 
yet), it is necessary that the objections raised in the grant procedure are identical 
 
2 It should be noted at this point that the referring court also subjects legal validity to a summary 
examination when deciding on an application for an injunction; if the defendant presents 
substantial reasons explaining why there are legitimate doubts as to legal validity, an 
interlocutory injunction will not be granted. 
REQUEST FOR A PRELIMINARY RULING OF 19. 1. 2021 – CASE C-44/21 
 
8  
to those asserted in the subsequent injunction proceedings. If in the injunction 
proceedings a defendant also relies on objections other than those raised in the 
grant procedure – as is the case here – the legal validity is assessed as not being 
secure. The other exceptions referred to above are not relevant here either. 
Therefore, the referring court presently considers itself to be compelled, contrary 
to its understanding of the provision made in Article 9(1) of Directive 
2004/48/EC, to refuse to issue interim measures in the present case, since the 
patent which is the subject of the injunction has not yet been through adversarial 
validity proceedings and the exceptions to that fundamental requirement that are 
prescribed in the case-law do not apply either. [Or. 9] 
By the following question, the referring court asks the Court of Justice to interpret 
Article 9(1)(a) of Directive 2004/48/EC, in particular the passage which reads 
‘may, [upon] request … issue an interlocutory injunction intended to prevent 
any imminent infringement of an intellectual property right, or to forbid … 
the continuation of the alleged infringements of that right’. 
This is because the referring court assumes, on the basis of the literal meaning of 
that provision, that the possibility of an interlocutory injunction is not ensured 
under national law if it is refused on the ground that opposition or invalidity 
proceedings at first instance have not yet taken place. 
Question: 
Is it compatible with Article 9(1) of Directive 2004/48/EC if German higher 
regional courts (Oberlandesgerichte), which have jurisdiction at last instance 
in proceedings for interim relief, refuse, in principle, to grant interim 
measures for patent infringement if the patent in dispute has not survived 
opposition or invalidity proceedings at first instance?