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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 3: Potential Risks with the Grant of Preliminary Injunctions in Patent Litigation


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Chapter 3:  Potential Risks with the Grant of Preliminary Injunctions in Patent Litigation

§3.1.  Introduction

Above, we have seen that despite the heightened uncertainty that forms one of the hallmarks of preliminary injunctions and proceedings – due to the (technical) complexity of the cases together with the economic and legal uncertainties – a preliminary injunction can nevertheless fulfil a useful role. However, this does not mean that they should therefore be granted too easily and freely by courts: as will be seen, they can also have significant drawbacks for the defendant as well as entail costs of a more social nature. These will be subject of this chapter.

Just as in the preceding chapter, the viewpoint taken here is that of a more doctrinal one. This means that the problems which are described in this chapter may not be as severe in practice as they appear to be from a theoretical point of view. The extent to which they do, of course depends on the constellation of facts of a particular case, and the exact way the legal system of a country is set up and functions.

§3.2.  Possible lock-in effect leading to biased decisionmaking

From a doctrinal perspective, with a two-stage litigation process as a preliminary injunction proceeding, there is always a risk of a lock-in effect. As Lynch writes, sometimes judges first rule on the grant of a preliminary injunction and then later also on the...

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