Romanian Patent Litigation Insights Part 2 – Interim Injunction Proceedings – The prima facie infringement of the patent and the requisite to not tackle the merits of the case.

After discussing in the 1st chapter the condition of the prima facie existence of the patent rights, in this 2nd chapter we turn our attention to the prima facie analysis of the infringing acts and, in close connection, to the requisite of not tackling the merits of the case in interim injunction proceedings.

As a rule, the assessment of patent infringement is rather complex and it often implies addressing difficult technical matters. However, interim injunction proceedings do not allow tackling the merits of the case. For a while this (apparent) contradiction was solved by the courts either by refusing de plano to address the matter and, thus, dismissing the claim for interim injunction, or by presuming that certain claimed features were met in order to grant the request. Both approaches were highly controversial, as they tended to be de plano (and unreasonably) favorable either to the defendant or to the patent owner.

However, the approach of the Romanian courts on this topic has more recently become notably and increasingly more complex and nuanced.

As was rightfully held in a decision rendered in 2020 by the Bucharest Court of Appeal, the mere fact that patent cases imply a complex analysis should not lead to a superficial approach of such assessment, but rather to a careful comparison between the features of the patent and those of the allegedly infringing product/process.

This trend was further adhered to and developed in various subsequent decisions of the Bucharest Court of Appeal rendered during 2020-2023, where the court proceeded to a comparison between the claimed features and the relevant features of the defendant’s product/process resulting in a conclusion on the appearance of infringement.

Although Romanian courts are currently more likely to proceed to an actual assessment on infringement, there are still limitations to such an approach and various situations might still lead to a solution on prima facie infringement in the absence of an actual feature-by-feature comparison.

For example, in a decision of the Bucharest Court of Appeal rendered in 2022, the court highlighted the fact that interim injunction proceedings are not compatible with an ample examination of the product’s composition and, more precisely, with an infringement analysis under the doctrine of equivalents.

Further on, in another relevant judgment, the court held that the appearance of the alleged infringement must be sufficiently obvious and an overlap between the claimant’s patent and the defendant’s product does not result as such in the case at hand given that both parties had filed party expert reports with opposite conclusions, while an independent expert report cannot be ordered in interim injunction proceedings.

To conclude, as the assessment of prima facie infringement benefits of an increasingly more in-depth approach from the Romanian courts, it is advisable for both claimants and defendants to be prepared to put forward, directly and, possibly, through party expert reports, detailed positions on infringement.


The information provided in this article is for general informational purposes only and does not constitute legal advice. It is not intended to create an attorney-client relationship. If you require legal advice specific to your situation, please contact our head of IP department –