myStromer v Revolt Zycling (UPC_CFI_177/2023)
Decision date:
22 June 2023
Osborne Clarke summary
- This decision concerned an ex parte application for a preliminary injunction issued by myStromer AG against Revolt Zycling AG in respect of alleged infringement of its patent protecting a combination structure of a bicycle frame and motor hub by Revolt's e-bike range "OPIUM".
- Revolt had presented the allegedly infringing e-bikes at a trade fair the day before the application was issued.
- Interestingly, Revolt had filed a protective letter with the court as a defence to the issuance of an ex parte preliminary injunction. However, the Düsseldorf LD granted the ex parte preliminary injunction, finding that the arguments put forward in the protective letter (non-infringement and exhaustion) were not sufficiently substantiated.
- myStromer met the urgency requirement for the grant of the preliminary injunction and the validity of the patent at issues was "secured to the extent required". The court noted that the patent did not have an opposition filed against it and no national revocation actions had been brought. It also noted that Revolt had not been able to present relevant prior art either before the court or in its protective letter.
- The preliminary injunction was granted on an ex parte basis because myStromer had "credibly demonstrated" that any delay would likely cause irreparable harm as per Rule 212.1 RoP. The court also noted that the trade fair was of considerable importance to the industry and that the exhibition of the contested embodiment at the fair could lead to a loss of sales or market share for myStromer that could not be reversed.
- The preliminary injunction covered Germany, the Netherlands, France and/or Italy. myStromer subsequently requested that the order be rectified to include Austria, arguing that the omission of Austria was an “obvious slip” within the meaning of Rule 353 RoP. This request for rectification was denied by an order dated 3 July 2023. According to the judges, an obvious slip required that a “declaration of the judicial intention in the decision or order must deviate from the intention present when the decision was made”.
- The Düsseldorf LD also made a seizure order under Rule 211.1(b) RoP, requiring Revolt to hand over any of the attacked embodiment in its direct or indirect possession or ownership at the trade fair to a bailiff.
Issue
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