INSIGHTS In recent years, cross-border patent disputes have intensified, drawing an increasing number of Chinese companies into major global litigation. Among the available remedies, injunctions often exert the most immediate and disruptive commercial impact. This series explores injunction practices in leading IP jurisdictions, analyzing their regimes and providing practical strategies to help Chinese companies manage legal risks when expanding overseas.
On 7 February 2025, Sol IP, a member of the Avanci patent pool, filed a patent infringement action against Chinese automaker BYD before the Landgericht Munich (Munich Regional Court) in Germany. Germany consistently leads Europe in the patent litigation landscape, owing to the efficiency and economy of its patent litigation system, in particular its injunction regime, which provides patentees with a powerful leverage in licensing negotiations. Once infringement is established, German courts grant injunctions almost automatically, with only limited exceptions in decades of case law. Equally important is Germany's bifurcated judicial system, under which infringement and validity are heard in separate proceedings. This allows courts to issue injunctions before validity is finally determined, creating a critical window for patentees to exert sustained pressure on implementers. Unsurprisingly, Germany is among the most strategically important jurisdictions for patentees seeking to secure licensing deals. For Chinese companies expanding globally, a clear-eyed understanding of how this regime operates and how to navigate it has become a commercial necessity.
As in most jurisdictions, patent injunctions in Germany fall into two categories: preliminary injunctions and permanent injunctions.
1. Preliminary Injunction
A. Issuance Procedure
Preliminary injunctions in Germany may be granted through ex parte or inter parte proceedings. Given the complexity of patent disputes, ex parte preliminary injunctions are far more common in trademark and design cases than in patent matters. However, courts may grant such relief in patent cases in limited circumstances, for example, where the facts are clear-cut, infringement is evident, validity is sufficiently established, urgent action is required to prevent irreparable harm, or the defendant has filed a protective letter without challenging validity. Where granted ex parte, preliminary injunctions may be issued within one to three days of filing — and in some cases, within hours.
In most inter parte cases, courts will schedule an oral hearing to hear both parties. Even so, preliminary injunctions remain a powerful tool for patentees, with decisions often issued within a few weeks and typically no later than three months.
B. Grant Conditions
As an emergency remedy aimed at stopping imminent infringement, preliminary injunctions in Germany require the claimant to substantiate infringement, demonstrate a risk of repetition, and establish an urgent need for relief.
Historically, German Higher Regional Courts required a completed adversarial validity proceeding, such as opposition or nullity actions, as a precondition for granting preliminary injunctions[1]. This approach was fundamentally altered by the CJEU in Phoenix v. Harting[2], which held that the requirement was incompatible with Article 9(1) of the EU Intellectual Property Rights Enforcement Directive (2004/48/EC). The CJEU further confirmed that patents are entitled to a presumption of validity upon grant, lowering the threshold for obtaining preliminary injunctive relief.
This ruling has led to divergent approaches among German regional courts:
This divergence affects both the relative ease of obtaining preliminary relief and the allocation of the burden of proof on validity, which is a dynamic that practitioners must account for when selecting the forum for enforcement or defense.
C. Legal Effect
A preliminary injunction takes effect upon service on the defendant. Under Section 924 of the German Code of Civil Procedure, the defendant may file an objection. While such an objection does not suspend enforcement, the court is required to schedule an oral hearing to allow the defendant to challenge the injunction and seek its revocation.
Notably, a preliminary injunction lapses if the plaintiff does not apply for enforcement within one month of issuance. Where the court orders security as a condition for enforcement (which is not mandatory), the plaintiff must provide adequate security within the same one-month period.
Violations of either preliminary or permanent injunctions carry severe sanctions, including fines of up to €250,000 per violation or imprisonment of up to six months (with a cumulative maximum of two years for repeated breaches). Defendants may appeal such penalty orders within two weeks of service, and enforcement is stayed pending appeal.
2. Permanent Injunction
A. Issuance Procedure
A permanent injunction is issued together with the first-instance judgment on infringement. On average, regional courts take about one year from filing to judgment, though timelines vary significantly depending on court, panel, and case complexity. For instance, in IP Bridge v. Ford[5], both validity and infringement (in relation to a standard) had already been established in prior proceedings, and IP Bridge had previously reached settlements with Apple, Daimler, OPPO, Tesla, Volkswagen, and others. The court issued an infringement judgment and granted an injunction after just seven months.
Duration also varies by forum and caseload. By most estimates, approximately 90% of German patent litigation is concentrated in Mannheim, Düsseldorf, and Munich. Average timelines from filing to hearing are approximately as follows[6]:
Courts typically issue judgments within four weeks of the hearing.
B. Grant Conditions
Unlike many other jurisdictions, Germany effectively applies a near-automatic rule for permanent injunctions once infringement is established. While courts may take equitable considerations into account in individual cases, such departures remain rare in practice. In nearly six years of SEP disputes, only two defendants have successfully relied on a FRAND defense to avoid an injunction; the Munich Regional Court has never upheld a FRAND defense in its history[7], even in cases involving NPEs.
In August 2021, Germany enacted amendments to the German Patent Act introducing some notable changes[8]:
In practice, however, these reforms have not materially weakened Germany's near-automatic injunction tradition. The most notable practical concession has been the occasional grant of transitional periods allowing defendants to sell down existing inventory before the injunction takes full effect[9].
C. Legal Effect
The permanent injunction also takes effect upon service on the defendant. Under Section 709 of the German Code of Civil Procedure (ZPO), the plaintiff must provide security to enforce the injunction. Once enforced, the defendant must immediately cease infringing acts. The defendant may appeal (although enforcement is not stayed pending appeal) or provide counter-security to avoid enforcement. However, this strategy rarely succeeds in practice.
Reflecting Germany's pro-patentee approach, to prevent the interests of the implementer from being significantly damaged due to the enforcement of the injunctions, courts have ordered extraordinarily high security in landmark cases: €1.34 billion (Qualcomm v. Apple), €7 billion (Nokia v. Daimler), and €227 million (IP Bridge v. Ford). However, such an extremely high amount still remains rare, and approaches vary significantly between courts.
In early 2024, the Munich Regional Court issued two preliminary injunctions with security set at just €4 million each. In Atlas Global v. TP-Link, the court adopted a pro-patentee low-security approach, holding that a defendant claiming wrongful-enforcement damages must provide concrete evidence (e.g., tax fillings); otherwise, high security would unduly undermine the injunction remedy. This approach significantly increased enforcement risk for implementers.
In August 2024, the Munich Higher Regional Court reversed course on appeal, rejecting the low-security approach. It held that security amounts are unrelated to the patentee's ability to pay and increased the enforcement security amount from €4 million to €26 million.
Table 1: Representative Security Amounts for Injunctive Relief Enforcement
3. Defense Strategies
Germany's injunction regime remains patentee-friendly. Despite reforms introducing proportionality and indicative assessments, courts still rarely rule in favor of implementers. As a result, Chinese companies need to adopt a strategic approach to strengthen their position within the existing framework.
Drawing on PurpleVine’s dispute resolution experience, the following practical strategies stand out:
A. Demonstrate Good Faith in SEP Licensing Negotiations
In SEP disputes, injunctions are subject to specific FRAND requirements that go beyond the general rules applicable to infringement actions. In Huawei v. ZTE (2015)[10], the CJEU established a legal framework focused on the good faith conduct to be expected of both parties — colloquially referred to as a "ping-pong" interaction — to prevent abuse of dominance under Article 102 TFEU:
a) The patentee sends an infringement notification to identify the relevant patent and the alleged infringing acts.
b) The implementer expresses its willingness to take a FRAND license.
c) Patentee makes offer on FRAND terms.
d) If the implementer rejects the patentee's offer, it should promptly submit a written FRAND counter-offer.
e) If the counter-offer is rejected and the implementer continues to use the SEP pending conclusion of a license, it must provide adequate security (such as a bank guarantee or deposit) consistent with commercial practice—calculated based on the counter-offer rate, or, where no counter-offer is made, based on the patentee's offer.
An implementer that negotiates in line with FRAND principles and commercial practice may successfully rely on a FRAND defense against injunctions. Some Chinese enterprises already use a post-rejection deposit as a standard step in SEP licensing negotiations. For those that do not, adopting this practice may significantly strengthen their position if injunction proceedings are initiated.
B. Pre-emptively File a Protective Letter
To reduce the risk of an ex parte preliminary injunction being granted without a hearing, companies may file a Protective Letter electronically with Germany's central register. This pre-emptive defensive submission sets out arguments on invalidity and non-infringement. It remains confidential unless and until the patentee seeks injunctive relief at which point the court discloses it to the claimant. The court may then request further submissions, schedule an oral hearing, and ultimately decide whether to grant or refuse the injunction.
A Protective Letter is not without risk: poorly formulated arguments may backfire. Courts and patentees may rely on the filing as evidence that the defendant had a full opportunity to be heard, thereby justifying an ex parte order without further proceedings — particularly where the letter fails to challenge validity. Effective use of this mechanism therefore requires accurate early-stage risk assessment and carefully drafted submissions.
C. Pursue Bilateral Agreements to Mitigate Injunction Risk
Where members of a patent pool initiate enforcement to advance licensing efforts, it may be worth considering whether bilateral licenses with individual members are feasible or advantageous at a given procedural stage. Bilateral arrangements can alleviate immediate market pressure and typically offer greater flexibility than pool licenses in terms of royalty rates, geographic coverage, and field-of-use scope.
When Avanci's 4G licensing negotiations with Daimler stalled, several licensors — including Nokia, Sharp, Conversant, and IP Bridge — initiated infringement proceedings against Daimler across Germany. All except IP Bridge secured first-instance injunctions. Daimler responded by pursuing bilateral licensing agreements, thereby strengthening its position in subsequent negotiations with the pool.
Table 2: Bilateral Agreement Progress of Avanci v. Daimler
D. Seek an Increase in Security Amounts on Appeal
Challenging a permanent injunction on the merits is subject to a high threshold and rarely suspends enforcement. A more practical strategy is to appeal specifically to seek an increase in the security amount, as illustrated by the Munich Higher Regional Court's decision in Atlas Global v. TP-Link, which raised the security amount from €4 million to €26 million. A higher security amount increases the financial cost of enforcement for the patentee, potentially deterring enforcement altogether.
References:
[1] OLG Düsseldorf, Urt. vom 23.2.2023, 2 U 116/22; OLG München, Urt. vom 12.12.2019, 6 U 4009/19;OLG Karlsruhe, Urt. vom 23.9.2015, 6 U 52/15; OLG Düsseldorf, Urt. vom 29.5.2008, 2 W 47/07.
[2] Phoenix v. HartingCourt of Justice of the European Union, judgment dated 28 April 2022, Case-No.C-44/21.
[3] OLG Düsseldorf, Urt. vom 22.9.2022, 4b O 54/22.
[4] OLG München, Urt. vom 29.9.2022, 7 O 4716/22.
[5] OLG München, Urt. vom 29.5.2022, 7 O 9572/21.
[6] Matthias Sonntag, Herwig Lux, Patent Laws and Regulations Germany 2024, ICLG(2023-09-29), Available at: https://iclg.com/practice-areas/patents-laws-and-regulations/germany.
[7] (from July 14, 2018 to May 20, 2024) Only two FRAND defenses have succeeded in Germany in 70 months, and only one in 47 months—but agenda-driven paper falsely lists two more, ip fray(2024-05-20), Available at: https://ipfray.com/only-two-frand-defenses-have-succeeded-in-germany-in-70-months-and-only-one-in-47-months-but-agenda-driven-paper-falsely-lists-two-more/.
[8] Benjamin Beck, Ulrich Worm, Germany Passes Law to Restrict Injunctive Relief in Patent Infringement Cases by Proportionality Considerations, Mayer Brown(2021-07-28), Available at: https://www.mayerbrown.com/fr/insights/blogs/2021/06/germany-passes-law-to-restrict-injunctive-relief-in-patent-infringement-cases-by-proportionality-considerations.
[9] Christian Osterrieth, Kriterien der Angemessenheit des Ausgleichs nach§139 I 4 PatG, [2022] GRUR 299.
[10] Huawei v ZTE, Court of Justice of the European Union, judgment dated 16 July 2015 , Case-No. C-170/13.
Author
Vivian(Qin) Wang
Ms. Vivian (Qin) Wang is a qualified Chinese lawyer with 15 years of experience in the intellectual property industry. Her expertise spans the full IP value chain, from patent strategy and filing to licensing, litigation, and patent asset commercialization. She specializes in litigation management, patent licensing, and the monetization of IP assets. Her key areas of practice include patent licensing negotiations, litigation settlements, designing licensing programs, patent portfolio commercialization, and drafting licensing agreements. Prior to joining PurpleVine IP Group, she worked at ZTE Corporation and Longji Green Energy Technology Co., Ltd. Ms. Wang holds a Master’s degree in Law from Northwest University of Political Science and Law and is qualified as both a Chinese attorney and a Chinese patent attorney. Contact Vivian at vivian.wang@purplevineip.com.
Eren(Xi) HE
Before joining PurpleVine IP Group, Mr. Xi He worked at ZTE, where he was responsible for managing and executing licensing strategies related to communication standard essential patents (SEPs). With over six years of experience in the IP field, he has been involved in large-scale international cross-licensing projects, patent pool operations, as well as patent transactions and valuation analyses. Mr. He is well-versed in the policies of major international standards organizations, such as 3GPP, and specializes in the full life-cycle management of SEP portfolios, as well as business strategy and external negotiations in licensing operations. Contact Mr. He at eren.he@purplevineip.com.
Robin(Danlei) Feng
Ms. Danlei Feng, a licensing assistant at PurpleVine IP, has accumulated 2 years of experience, assisting the team in patent litigation searches, analysis, due diligence, and legal assessments in numerous global patent licensing and dispute resolution cases. These cases span multiple technical fields, including cellular communications (4G/5G), Wi-Fi, audio and video codecs (AVC/H.264, HEVC/H.265, VVC/H.266, VP9, AV1, AAC), wireless charging (Qi), and more. Ms. Feng holds a Master’s degree in Law from Sichuan University and is qualified to practice law in China. Contact Ms. Feng at robin.feng@purplevineip.com.
