Case Law
Rule 25: Counterclaim for revocation

Court of First Instance - Düsseldorf (DE) Local Division, Order dated 10/10/2024, Seoul Viosys Co., Ltd. v. expert klein GmbH, expert e-Commerce GmbH (Case/ Registry number: ACT_579244/2023, ORD_598458/2023)
Example of decision on the counterclaim for revocation: "1. If the plaintiff wishes to make a claim against several defendants, he has the choice of suing each defendant individually or bringing an action against several defendants. If the plaintiff decides in favour of the latter, the actions must nevertheless each be treated independently. Each defendant conducts its own lawsuit formally and substantively independently of the others, without the respective actions of one defendant causing advantages or disadvantages for the other defendant.
2. If R. 25.1 RoP requires the filing of a counterclaim for a declaration of invalidity of the patent, insofar as the statement of defence includes the assertion that the allegedly infringed patent is invalid, this applies separately to each defendant. This does not exclude the joint filing of a revocation counterclaim by several defendants. However, if individual defendants decide against filing a revocation counterclaim and the counterclaim is only expressly filed by individual defendants, the validity argument is formally excluded for the defendants not involved in the revocation counterclaim. They can therefore not successfully invoke the lack of legal validity in their proceedings. However, as long as the court refrains from separating the proceedings against several defendants, this has no de facto effect.
3. The answer to the question of whether an order or decision should be made dependent on a security to be determined by the court (R. 118.8 RoP) always requires a case-by-case examination in which the plaintiff’s interest in the effective enforcement of its property right must be weighed against the interest in the effective enforcement of possible claims for damages in the event of the judgement being subsequently set aside. The factors to be considered when deciding whether to order the provision of security include the financial situation of the plaintiff, which may give rise to the justified and real concern that a possible claim for damages cannot be enforced and/or enforced at all or only with disproportionate effort. Whether and to what extent such factors exist must be determined on the basis of the facts and arguments presented by the parties."