Munich I Regional Court’s stunning PI for 20+ countries: based on BSH, doctrine of equivalents, difficult-to-enforce formulation patent

Context: Earlier this year, the European Court of Justice (ECJ) clarified in BSH v. Electrolux the long-arm jurisdiction of the courts of EU member states and, by extension, the Unified Patent Court (UPC) over patent cases in which an invalidity defense is raised (February 25, 2025 ip fray article). As a result, we have already seen the UPC’s first-ever UK injunction (July 18, 2025 ip fray article) and first-ever Spanish injunction (August 18, 2025 ip fray article).

What’s new: Last Thursday (September 25, 2025), Bayer won the first-ever BSH-based preliminary injunction (PI). The 7th Civil Chamber of the Landgericht München I (Munich I Regional Court) under Presiding Judge Dr. Oliver Schoen (“Schön” in German) enjoined biosimilar maker Formycon with respect to more than 20 countries at the end of a full-day PI hearing over a formulation patent, a category of life sciences patents with a relatively low rate of success in court. The finding of a likely infringement was based on the doctrine of equivalents (DOE).

Direct impact: The written reasons and a judgment in parallel main proceedings, which has apparently already been written apart from a purely procedural aspect, will be handed down on October 9, 2025. Therefore, it appears highly unlikely that defendant Formycon can turn this around in the main proceedings. It will presumably appeal, given that the patent-in-suit is in force for another 20 months.

Wider ramifications:

• Not only is the combination of a BSH-based PI, a formulation patent and the application of the DOE rather unusual, but the BSH part may have major implications in its own right (as will be discussed below).
• The firm of Hoyng Rokh Monegier has achieved three BSH firsts: the first BSH-based UPC injunction (the UK injunction mentioned further above), the first BSH-based injunction by a national court, and the first BSH-based PI (by any court).