German Court Grants Preliminary Injunction Despite "Invalid" Patent

For the first time in history, a German court has awarded a preliminary injunction in circumstances where the patent in suit had previously been revoked by the German Federal Patents Court. In its landmark decision10, the Appellate Court of Dusseldorf enjoined a generic company from manufacturing and distributing a generic version of the patented anti-schizophrenia medication olanzapine.

Background

The German patent law system divides proceedings concerning the validity of patents from infringement proceedings. While the Federal Patents Court and, in second (and last) instance, the Federal Supreme Court examines the validity of patents, the assessment of infringement cases is assigned to the District Courts, the regional Appellate Courts and, in the final instance, to the Federal Supreme Court. According to the previous case law, if the Federal Patents Court has revoked a patent, infringement