GERMANY LAW AND PRACTICE Contributed by: Dr. Clemens Tobias Steins, Dr. Michael Pfeifer, Dr. Daniel Grohs and Dr. Bianca-Lucia Vos, Hoffmann Eitle
Oral hearing in provisional injunction proceedings If the provisional injunction is not requested ex parte or if the court does not follow the request, the court will serve the provisional injunction request on the respondent and schedule an oral hearing, typically to be held about two to three months later. The same applies if the respondent objects to a provisional injunction order. The parties can make submissions up to the end of the oral hearing; there is no preclusion, and the other party must react, if necessary, on the spot unless the court finds that an assertion has been held back to blindside the other party. The hearing must, therefore, be prepared, tak - ing into account all eventualities. Thus, potential witnesses and party experts should be present at the hearing. Upon the hearing, the court would issue a judg - ment. Also, this judgment is merely provisional and can be challenged by the defendant at any time. Relation to main proceedings Provisional injunction proceedings are inde - pendent of a main action in Germany. Respond - ents can request the court to set a deadline for commencing a main action, but in practice, they rarely do so. 1.4 Structure of Main Proceedings on Infringement/Validity Patent infringement proceedings in Germany are bifurcated. The infringement courts are not per - mitted to hold that a patent is invalid. Parallel invalidity proceedings must be pending to argue the patent’s invalidity in the infringement
If the provisional injunction is not executed in the manner described above within one month of its issuance, the respondent may request that it be lifted on this ground alone. It will normally not be possible to apply for a new provisional injunction because of the lack of urgency. Protective briefs A protective brief is a common instrument to ensure that one is heard before the court con - sidering an ex parte injunction. A protective brief is an anticipatory defence brief that is filed when one is concerned about an ex parte injunction, eg, before launching a product or attending a trade fair in Germany. The brief is filed with an online repository accessible only to the German courts. Should a provisional injunction request be filed, the court would search the repository for a pro - tective brief and decide how to proceed. A pro - visional injunction is still possible, namely when the protective brief fails to convince. If the court decides against issuing the provisional injunc - tion, the court may contact the petitioner and recommend that they withdraw their request. If this is not done or the petitioner refuses, the court will proceed to inter partes proceedings (see e) below). The protective briefs are valid for six months but can be renewed. Objection by the respondent against an injunction order If a respondent is faced with an injunction order, they can – at any time – file an objection with the court, which will cause the court to schedule a hearing, as set out below.
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