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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 2: Independent Economic and Doctrinal Reasons in Favour of the Availability of the Remedy of Preliminary Injunctions


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Chapter 2:  Independent Economic and Doctrinal Reasons in Favour of the Availability of the Remedy of Preliminary Injunctions

§2.1.  Introduction

Apart from international and national legal obligations to provide the remedy of preliminary injunctions, there are more independent doctrinal justifications as well. Authors of legal and economic writing on preliminary injunctions have used varying formulations to describe the main justifications for why the institution of the preliminary injunction is useful or necessary. Below, the main justifications that are regularly cited are set out. These will be analysed on their value.

Please note four points beforehand.

Firstly, the question that is raised here is not when or whether a preliminary injunction should be given in a specific, concrete case. Instead, it is about justifications for the availability of the legal remedy itself.

Secondly, it should be stressed that the viewpoint from this chapter is that of a more theoretical and overarching one. Even when a justification is not explicitly addressed or mentioned by the court in a specific case, this does not mean that this is not a justification for the remedy itself nor that it does not have this function in practice. As will be seen, when looking comparatively at the actual standards used by courts in different jurisdictions, national courts interpret justifications differently and attribute different values to them. Sometimes for instance ‘irreparable harm’ is an explicit condition to be fulfilled and is prescribed in...

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