Patent and provisional measures. CJEU: a judgment declaring validity is not necessary!

05.05.2022 | EN, News EN

Patent and provisional measures. CJEU: a judgment declaring validity is not necessary!


In its judgment of 28 April 2022 (ref. C-44/21), the CJEU ruled that Article 9(1) of Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights must be interpreted as precluding national case law according to which applications for provisional measures for patent infringement should, in principle, be dismissed if the validity of the patent in question has not been confirmed at least by a judgment at first instance following opposition or invalidity proceedings.

Proceedings before the national court:

The claimant company applied for interim relief against the defendant company in the form of an injunction against infringement of the claimant’s patent. The referring court had no doubt as to the validity of the granted patent. It noted, however, that it follows from well-established case law that an interim measure can only be granted if the patent in question has previously been the subject of a ruling (either by the European Patent Office or a national patent court). In this case, there was no such prejudgment.

Accordingly, the referring court asked the CJEU whether such a line of case law was compatible with Directive 2004/48/EC.

 CJEU judgement:

The Court ruled that this type of line of jurisprudence does not comply with the provisions of Directive 2004/48/EC. Thus, it ruled that it is not necessary to have a precedent in the form of a judgment of the EPO or of a national court in order to grant provisional measures if the court which is to grant such measures does not doubt the validity of the patent in question.

The CJEU pointed out that the purpose of provisional measures is to bring about an immediate cessation of the infringement of the intellectual property right in question. The well-established line of case-law, which the referring court cast doubt on, does not contribute to the attainment of that objective as it deprives the institution of the provisional measures of any effectiveness.

Furthermore, the Court reiterated the presumption of validity of patents from the date when information on granting them was published.


The CJEU judgment is justified. One has to fully agree with the reasoning that to accept the contested line of case law as correct would deprive the institution of interim measures of all effectiveness. Provisional measures should act swiftly and lead to the cessation of infringements without undue delay. Waiting for a prejudicial decision of the competent authority (even in the absence of any doubt as to the validity of the patent) would render the institution of provisional measures dead and inoperative.

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