Normally, on condition that judicial bail is deposited, non-final injunctions issued by German first instance courts in disputes over patent infringement are provisionally enforceable. The plaintiff can thus enforce an injunction against the defendant even while appeal proceedings are still pending, by e.g. providing a bank security. The defendant can counter this by seeking a temporary stay of execution. In matters of patent infringement, however, this is usually only successful if
- the Court of Appeals, in light of a preliminary examination, finds it likely that the judgement will be reversed or
- there exists the likelyhood that the defendant would incur exceptional damages beyond the normal effect of the execution.
In its decision from July 1, 2009 (file reference: I-2 U 51/08), the Court of Appeals (Oberlandesgericht) of Düsseldorf has extended the first point to cases where a reversal of judgement may not necessarily be obvious but where, however, a key legal point has not been dealt with by the lower court. The subject-matter of the patent in suit was a telecommunication method involving six steps, four of which the defendant – according to the Court of Appeals – was performing outside Germany. This poses the question under which conditions a process of which several steps are executed abroad, constitutes infringement of a German patent or the German part of a European patent. According to the Court of Appeals, this matter is not clarified by case law and has not been treated in the literature with the required depth. Since the District Court had not dealt with this difficult legal question central to the case, the petition for a stay of execution was to be granted as a special exception.