Consequences of the CJEU’s Bayer v Richter decision

Abstract

The decision Bayer v Richter of the CJEU has consequences for the national court practice of the EU Member States on the liability of the patent proprietor for damages in case an interim injunction is lifted due to the revocation of the patent. An in-depth analysis of the decision seems necessary. The practice of the European Union (EU) Member States on the liability for damages of a patent proprietor who has obtained an interim injunction which is then lifted due to the revocation of the patent continues to differ,1 despite Article 50(7) of the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement, which is binding on all these states, and despite Article 9(7) of Directive 2004/48/EC (Enforcement Directive), which is also binding on these states. Two examples of differences suffice here. In ‘Germany’, if an injunction based on a patent is lifted because the patent has been revoked, the claimant is obliged under Section 945 of the Code of Civil Procedure to compensate the defendant for the damage he suffers as a result of the enforcement of the injunction. The provision does not contain any requirement of considering the applicant’s conduct (fault) or that of the respondent (contributory negligence2). According to court practice, the provision in principle does not apply if the reason justifying the procedural measure subsequently ceases to exist.3 However, since the revocation (Art. 138 European Patent Convention (EPC), Sec. 64 (1) Patent Act) has retroactive effect, it is consistently held in case law,4 against objections raised by considerable parts of the literature on procedural law,5 that the claimant is liable for damages under Sec. 945 ZPO irrespective of the foreseeability of the destruction, namely with regard to the entire damage caused by enforcement (‘strict liability’). The Court of Justice of the European Union (CJEU) decision Bayer v Richter,6 analysed below, gives reason to reconsider this court practice.