Patent Litigation in Practice Series: Spotlight on the Czech Republic – Preliminary Injunctions

Preliminary injunctions serve as a critical tool for protecting patent rights, allowing courts to halt alleged infringement while the main case proceeds. However, when granted too readily – particularly where patent validity remains uncertain – they risk creating artificial barriers to competition and inflating prices. Striking the right balance is therefore essential to safeguard both innovation incentives and broader public interests.

Compared to some other countries, obtaining a preliminary injunction in IP infringement cases in the Czech Republic is relatively accessible. This ease of access, combined with exceptionally rapid decision-making, makes the Czech system one of the most attractive jurisdictions in Europe for patent holders seeking urgent relief, particularly in the pharma industry. However, this speed comes with distinct procedural features that both patentees and potential defendants should understand.

Key Advantages: Speed and Accessibility

To obtain a preliminary injunction, the plaintiff need only demonstrate a likelihood of infringement and a degree of urgency. This relatively low threshold distinguishes the Czech Republic from many other European jurisdictions, where requirements for preliminary relief tend to be more stringent.

Most notably, Czech courts must decide preliminary injunction applications within seven calendar days – including weekends and public holidays. This timeline compares exceptionally favourably with other major patent litigation jurisdictions, where decisions can take weeks or months.

While appeals against preliminary injunction decisions are possible, they do not suspend the injunction’s effect. Since appellate courts review cases based on the factual and legal situation existing when the injunction was originally granted, defendants have limited opportunities for effective defence at the appellate stage.

The Ex-Parte System: A Double-Edged Sword

One of the most distinctive – and controversial – features of the Czech system is its exclusively ex parte nature. Czech courts decide on preliminary injunction requests without hearing or even notifying the defendant, relying solely on the applicant’s submission. This makes the process unusually fast, but it also raises concerns about fairness and balance.

The Czech system's ex-parte approach creates several practical consequences for defendants. They receive no notification of preliminary injunction requests and have no opportunity to present a defence. The proceedings have no oral hearings, with notification occurring only after the injunction has been granted and becomes immediately enforceable.

This process means defendants face immediate enforcement without prior warning or opportunity to present counter-arguments. Czech law does not formally recognise protective letters. While defendants may submit such letters to the court, there is no established register or consistent practice for doing so, and no guarantee that the court will consider them.

This ex parte approach is exceptional compared to most other jurisdictions, where preliminary injunction proceedings are typically inter partes, involving hearings and submissions from both parties before a decision is made. Even in countries that allow ex parte orders, courts often consider protective letters before granting such injunctions.

Patent Validity: The Bifurcation Challenge

Under the Czech bifurcated system, courts do not examine questions of patent validity during infringement proceedings. Consequently, several factors that might serve as defences in other jurisdictions are generally unavailable and unlikely to prevent the granting of a preliminary injunction. These include pending invalidity proceedings, apparent weaknesses in patent validity, or even first-instance invalidity decisions from the Czech IP Office or the European Patent Office that remain non-final due to ongoing appeals.

This rigid separation contrasts sharply with other jurisdictions, where courts considering preliminary injunctions often weigh patent validity concerns and may refuse preliminary relief when significant invalidity risks exist.

Practical Requirements and Costs

Evidence and Expert Opinion

The evidentiary standard in preliminary injunction proceedings is relatively low, requiring only a demonstration that infringement is probable. However, given that Czech judges generally lack technical expertise, expert opinions are frequently submitted to assist the court in assessing the likelihood of infringement.

Urgency Requirements

Czech preliminary injunction proceedings incorporate an urgency requirement, though this standard is neither as strict nor as precisely defined as in many other jurisdictions. Notably, no established timeframe exists within which applications must be filed, leaving courts with considerable discretion in determining what constitutes sufficient urgency.

Financial Barriers

Financial barriers remain comparatively modest. Court fees approximate EUR 40, while plaintiffs must deposit approximately EUR 2,000 to cover potential damages should the preliminary injunction ultimately prove unjustified in the main proceedings. Courts retain discretion to increase this deposit substantially when circumstances warrant such adjustment.

Strategic Implications

For Patent Holders

The Czech system provides patent holders with one of Europe's most accessible routes to preliminary injunctions. The combination of low threshold requirements, rapid decision-making, and immediate enforceability creates particularly attractive conditions for swiftly halting alleged infringement.

For Potential Defendants

The system's ex‑parte nature and speed present significant challenges for defendants. With preliminary injunctions granted without defendant participation and the absence of formal recognition for protective letters, defendants face substantial procedural disadvantages rarely found in other jurisdictions.

Broader Market Considerations

For patentees, preliminary injunctions can be an effective tool to prevent suspected infringing products from reaching the market. However, because injunctions are decided on a prima facie basis, they can potentially be misused to hinder competitors and ultimately harm consumers through higher prices. This risk is especially pronounced in the pharmaceutical sector, where the uncertainty and threat of a preliminary injunction can deter generic medicines from entering the market.

Conclusion

The Czech Republic’s preliminary injunction system ranks among Europe's most patentee-friendly regimes, delivering rapid relief with minimal procedural barriers. However, this accessibility comes at the cost of significantly reduced procedural safeguards for defendants compared to other major jurisdictions. Both patent holders seeking to enforce their rights and potential defendants developing market strategies must understand these distinctive features to navigate the Czech system effectively.