An International Guide to
Patent Case Management for Judges

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5.6.10 Decision

A decision can be a decision on the merits (e.g., entering into the relief as requested by the plaintiff) or a dismissal of the case for lack of infringement or lack of standing (Section 300(1)). It can, however, also be an order for evidence or a stay of the infringement proceedings pending a nullity action or opposition proceedings (Section 148). The decision can also be to reopen the case, scheduling another hearing date (Section 156). The pronouncement takes place in a separate oral hearing, typically in the morning of the court’s respective weekly hearing day and before the first hearing on the scheduled case starts. On the date for pronouncing the decision, the fully worded ruling must be ready (Section 310(2)), which is why, though not frequent, dates for pronouncing a decision might be postponed.

The parties do not need to attend the pronouncement (Section 312(1)). Typically, no counsel attends, but somebody from the outside counsel’s office would attend the pronouncement as part of the public. The pronouncement only repeats the court’s order (i.e., the ordered relief or dismissal) and the decision on costs and enforceability. In almost all cases, no further reasons are given orally, but the written opinion is already available. Depending on the court, the parties’ counsel can obtain a copy of the decision at the clerk’s office.

After pronouncing the decision, the ordered relief is already legally existing, even though the fully worded judgment is only officially served on the parties some days later.160 Thus, if an injunction is at issue, the pronouncement is the earliest point at which it can be effective. For a first-instance decision to be actually “binding” in the sense of “enforceable,” the plaintiff must post a security bond (which is ordered as part of the relief in the ruling; cf. Section 709). Any first-instance decision needs to be accompanied by a decision on its “preliminary enforceability,” which means defining the requirement for enforcing the decision before it becomes final, particularly pending appeal.

The plaintiff can already be prepared for such a security bond, which is typically provided as a bank guarantee. It can be served on the defendant’s counsel on the very same day if the process is completed. Consequently, the defendant would need to immediately honor the injunction even if the reasons of the decision have not been served. However, filing any measures of contempt requires the service of the ruling, and it also requires an “enforceable” copy of the judgment, which the clerk provides (Section 750(1)).

There are several special forms of decisions. If either of the parties do not attend the hearing (despite being properly summoned), a default judgment can be pronounced. A default judgment against the plaintiff (Section 330) only requires a corresponding petition from the defendant. If the defendant fails to appear, it is presumed that the facts as submitted to the court by the plaintiff in oral argument have been acknowledged by the defendant (Section 331). Thus, the court can only render a default judgment against the defendant if the legal conclusions based on the plaintiff’s factual contentions support the plaintiff’s requests. A default judgment is very dangerous, as it is enforceable without the posting of a security bond.

On special occasions, either side might be under pressure to concede. For the plaintiff, this is possible in the form of a procedural “waiver” under Section 306. According to this provision, during the hearing, the plaintiff can waive the claim asserted so that they shall be dismissed with their claim should the defendant apply for such a dismissal. This is a dismissal with full prejudice. A mere voluntary withdrawal under Section 269 does not have this procedural prejudice, which is why defendants have the right to refuse consent to the plaintiff’s withdrawal if a hearing on the merits has already taken place (Section 269(3)). However, a withdrawn claim can, of course, not be reasserted if there is an underlying settlement. Based on this, the defendant could have a reasserted claim dismissed as inadmissible. Yet, sometimes, defendants in these scenarios insist on a waiver judgment under Section 306 and are not content with a withdrawal.

For the defendant, conceding can be done in the form of an “acknowledgment” under Section 307. This might happen if the plaintiff did not send a warning letter before filing the action, and the defendant wants to avoid the costs. In such a scenario, if the acknowledgment is presented without undue delay, the plaintiff would need to bear the costs of the proceedings (Section 93).