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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 4: A Case Study of the role of Preliminary Injunctions in Practice: Generic Entry in the Pharmaceutical Market


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Chapter 4:  A Case Study of the Role of Preliminary Injunctions in Practice: Generic Entry in the Pharmaceutical Market

§4.1.  Introduction

It has been demonstrated above that preliminary injunctions have both justifications and risks arguing in favour or against them. It is submitted that this is shown very well in a sector in which preliminary injunctions are routinely used and which also is a sector that happens to be well-documented: this is the pharmaceutical sector,290 where preliminary injunctions are frequently requested in originator-generic competition.

§4.2.  Preliminary injunctions and the (generic) pharmaceutical market

Apart from the vast economic value of the industry itself,291 the pharmaceutical sector is also an essential sector having a direct impact on the health of citizens as well as on the affordability of the health system.292 Pharmaceuticals are often seen as a key factor in driving health expenditures.293 Patents play a role in safeguarding both the economic value of the findings as well as fostering a climate of innovation, stimulating further Research and Development. Preliminary injunctions play an important role too in this market and can be considered as a regularly used tool of enforcement in a rather specific context. According to the European Commission, interim injunctions in the EU are hardly ever sought between originator ← 97 | 98 → pharmaceutical companies,294 but this is markedly different from the situation between originator companies and generic companies.

“According to the data submitted by...

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