German patent judges dispel any doubts that might have existed: injunctive relief continues to be readily available to prevailing patentees

An international IP-specialized publication that I’ve mentioned on a variety of more positive occasions was totally off-base with the following headline on June 11: “Germany’s automatic injunction regime for patent cases looks set to end”

That headline is just as wrong as Dewey Defeats Truman was back in the day. There was a procedural juncture last September when I thought the pendulum had swung against the automatic patent injunction regime, but that impression didn’t last long. By the time the German federal parliament held its final vote, we were long past the point at which one could doubt what the impact of the amended injunction statute (§ 139 PatG) would be.

I’ve never seen a reporter from that publication in or near a German courtroom. That may explain this misconception. To be fair, the second sentence below the headline at least nuanced the fundamental misconception by noting that “[this] does not mean that major changes in practical terms are guaranteed.” That portrayal of the situation is not spot-on either, but a lot closer to accuracy than the headline.

I explained the fallout from the legislative decision the morning after the vote; in a podcast I published on Monday, you can hear from two very experienced and knowledgeable German patent litigators and from comparative patent remedies expert Professor Tom Cotter; and yesterday I translated a variety of quotes from the case law and, especially, the parliamentary process to show that the legislative intent is clear: there should be and will be no departure from the (near-)automatic patent injunction regime that made Germany the most popular jurisdiction among patentees seeking to enforce their rights against infringers.

If you still needed to see something more that would eliminate any residual doubt, let me point you to today’s Juve Patent article entitled German patent judges predict few changes to automatic injunction.

Juve Patent anonymously quotes judges from the divisions hearing patent infringement cases in Munich, Mannheim, and Dusseldorf. They all basically tell the same story: in order for proportionality arguments to matter, you have to make a showing that your case is a very rare exception.

The Juve Patent article is recommended reading. Rather than quote excessively from it, I’d just like to highlight it because it’s the final nail in the coffin of the spin doctoring some have engaged in, and the misconceptions a few have had, since the final parliamentary vote. But I do wish to add something to the quote of an unnamed Munich judge who said that a grace period prior to the actual enforcement of an injunction “should only be granted in extreme situations” such as “when banknotes can no longer be printed or no one can make phone calls.” First, even in such cases they’re not really thinking of the denial of an injunction, but mostly just a workaround period. Second, like in the Heat Exchanger opinion by the Federal Court of Justice, the availability of a license will be held against the infringer. And third, the scenario of no more phone calls normally means that it’s a SEP. In a SEP case, however, implementers are entitled to a license under the antitrust laws anyway, and there won’t be a proportionality defense on top of FRAND. So even delayed enforcement is going to be a very rare exception–and the wholesale denial of an injunction is probably not going to happen even once unless and until the law is amended again.

Don’t believe the wrong sources. Some are clueless, and some just try to portray something as a political success within their organizations that’s actually a complete lobbying failure. I’ve been telling it like it is, in a relentless pursuit of the truth, and I’m happy to have been vindicated by multiple judges who spoke to Juve Patent about this matter.

Come September, the new FOSS Patents Premium service will provide complete coverage of how the case law in Munich and Mannheim evolves. Plaintiffs and defendants alike will have to be prepared. Some things will change, but prevailing patentees are going to get their injunctions as long as they make a licensing offer that isn’t facially absurd.

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