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In a very recent decision (Higher Regional Court Vienna, 12 January 2007), the amount of payments as indemnification for such an unjustified injunction was finally judged. The interlocutory injunction for infringement of an European Patent was granted in July 1998. The patent was finally revoked for Austria in a decision served on the parties in September 2004. The Court of 1st Instance (Commercial Court Vienna) revoked the unjustified injunction in March 2005, but for the time between the serving of the final invalidity decision and that revocation no indemnifications are due since legally in that time the unjustified injunction was no longer in force. As part of the indemnification also immaterial damages to the health of the defendant due to the unjustified court order were claimed since for patent infringement such could be asked for. However, the courts found that the law on compensation for unjustified interlocutory injunctions does not support such a claim. Out of court attorneys’ costs for the defence and the proceedings were, however, granted.
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