PIL instrument(s)

Case number and/or case name

OLG Dresden, 28.7.2009 – 14 U 1008/08

Details of the court

Germany, Second Instance

Articles referred to by the court

Date of the judgement

17 July 2009

Appeal history

CJEU's case law cited by the court

Summary

The plaintiff brought an action for a negative declaratory judgment. She wanted the court to declare that the defendant’s patents didn’t prohibit producing, offering, using importing or possessing DVDs by her in Germany. The Regional Court Leipzig refused the action by denying the German courts’ international jurisdiction. The Higher Regional Court confirmed this decision. It held that Art. 5 no. 3 Brussels I didn’t apply to actions which demanded the declaration that the plaintiff didn’t violate the defendant’s patents. Art. 22 no. 4 Brussels I further wasn’t applicable: the subject matter of the action didn’t concern the question of the validity of patents but presumed their violation. The denying of the international jurisdiction pursuant to Art. 5 no. 3 Brussels I can’t be maintained given the jurisdiction of the CJEU in Folien Fischer & Fofitec/Ritrama (C-133/11) where the CJEU stated: Art. 5 no. 3 Brussels I must be interpreted as meaning that an action for a negative declaration seeking to establish the absence of liability in tort, delict, or quasi-delict falls within the scope of that provision. The judgment therefore can’t be considered correct.