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Preliminary Injunctions in Patent Litigation

Alternative Approaches to Provide Effective Justice under Uncertainty


Arthur von Martels

This academic work investigates various approaches for deciding on the grant of preliminary injunctions in patent litigation. These can be a highly effective remedy, but a decision to grant a preliminary injunction is taken early in the course of litigation and often under a cloud of uncertainty. If granted too easily or erroneously, preliminary injunctions can have negative consequences on competition and innovation. The author looks at (judicial) standards that have been developed in various national jurisdictions, Legal theory and Law and Economics. The lessons learned here can be of particular relevance for the future Unified Patent Court.

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Chapter 1: Setting the Scene: Preliminary Injunctions, Patents and Uncertainty


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Chapter 1:  Setting the Scene: Preliminary Injunctions, Patents and Uncertainty

§1.1.  Introduction

As stated before, an injunction is a legal order given by a court of law, prescribing or prohibiting a certain behaviour that the addressee of the injunction should adhere to.27 A natural starting point of this dissertation is to raise the key question of what are to be considered as the hallmarks of preliminary injunctions and preliminary injunction proceedings? It is submitted that there are three specific characteristics that make the preliminary injunction itself distinct from permanent (also known as ← 29 | 30 → final) injunctions and, at the same time, also make preliminary injunction proceedings different from that of a trial on the merits.

These three characteristics are the following:

(1) A preliminary injunction is a decision that is taken under circumstances of heightened uncertainty. This is due to the brevity in time that a court should make its decision in, and (thus) the more limited nature of the investigation by the court in comparison with a final injunction and a trial on the merits. As an example, observe that with a permanent injunction in a patent dispute, at least the liability of the other party in infringing the right has been established.28 ← 30 | 31 → This is not yet the case with a preliminary injunction where the likelihood that the defendant will be held liable of infringement at a later stage of the litigation should be assessed....

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