A request for the issuance of a preliminary injunction is submitted to the presiding judge immediately upon receipt by the court. As for the proceedings on the merits, jurisdiction is held by the specialized patent litigation chamber of any of the 12 selected regional courts in Germany. Preliminary injunction proceedings are most frequently brought before the Regional Courts of Duesseldorf, Mannheim, Munich and Hamburg.
If a preliminary examination of the request satisfies the court that the request for the issuance of a preliminary injunction has very little chance of success, the court will often notify the claimant of its assessment in order to give them the opportunity to withdraw the request. This is because withdrawal at this point in time results in considerably lower costs. However, in contrast to previous practice, on the basis of two decisions dated September 30, 2018 (docket no. 1 BvR 1783/17 and 1 BvR 2421/17) issued by the Federal Constitutional Court in the field of press law, it is to be assumed that such an indication is put on record and is sent to the opponent, so that it becomes aware of the pending request for a preliminary injunction.
If the court deems the request to be founded, it can issue a preliminary injunction without hearing the opponent (ex parte).
However, in the two aforementioned decisions, the Federal Constitutional Court clarified that in general, such ex parte injunctions for enforcing the right to procedural equality of arms only come into consideration, if the opponent was previously heard, meaning that the opponent was given the opportunity to comment on the accusations. For example, this is the case if the opponent was given the opportunity to reply to a pre-trial warning letter, either by an extrajudicial letter of response or by filing a protective letter (see item 4 in this regard) if it is ensured that the individual substantiation in the request for a preliminary injunction and in the warning letter are identical and the pre-trial responses of the opponent are available to the court in full.
According to the findings of the Federal Constitutional Court, however, there is an exception from the principle of prior hearing of the opponent if the hearing would obstruct the purpose of the preliminary injunction proceedings. Thus, it remains to be seen whether this exception will be affirmed in the case law of courts of lower instances in highly time-critical situations, such as, for example, trade fair matters, or if at least a warning on short notice is necessary.
If the opponent did not receive a pre-trial warning letter (and there is no threat of an obstruction of the purpose of the preliminary injunction proceedings either) or if, after consideration of the warning letter and a corresponding response, the court has doubts about the merits of the claim, it will order an oral hearing (inter partes proceedings). This usually takes place between three weeks and three months after the request is filed, depending on how busy the court’s schedule is. At the oral hearing, the case is extensively discussed. The court then renders its decision, usually on the same day.
An oral hearing or at least hearing the opponent’s arguments in writing may exceptionally be in the claimant’s interest if the opponent has its place of business abroad. For in case a preliminary injunction is issued without the opponent having been heard, enforcing such preliminary injunction abroad may be problematic.
A preliminary injunction issued by a court only has legal effect from the date it is served on the opponent and/or its attorney for the action. The claimant is responsible for this so-called execution (hereinafter referred to as enforcement in line with the terminology in proceedings on the merits) of the preliminary injunction. It must carry it out within one month of the date of issuance of the preliminary injunction. The claimant is not obliged to effect the enforcement as, in doing so, it assumes liability for any losses the opponent may suffer as a result of the enforcement, should the preliminary injunction be lifted by the appeal court.
Obtaining a preliminary injunction without enforcing it can nevertheless be useful in order to point out the legal situation to an essentially law-abiding opponent by informally sending them the issued preliminary injunction to induce them to observe the intellectual property right.
The opponent can lodge an objection against the granted preliminary injunction (when it has been issued without an oral hearing) or an appeal (when it has been issued following an oral hearing). Lodging an objection or an appeal cannot prevent the enforcement of the preliminary injunction, i.e. the injunction order remains in force until the court has decided on the objection or appeal. Only in very few exceptional cases can the opponent request the enforcement of the preliminary injunction to be cancelled. Objection or appeal proceedings last between two and six months, depending on the amount of business the court is dealing with. An appeal on points of law is not admissible. Should a request for the issuance of a preliminary injunction be rejected, the claimant is entitled to lodge an objection (in the case of rejection without an oral hearing) or an appeal (in the case of rejection following an oral hearing). These means are of little practical importance, since the preliminary effect is lost, especially in trade fair matters, if it is not granted immediately.
In the case of a preliminary injunction being granted, the timescale for preliminary injunction proceedings in patent and utility model matters is typically as follows: