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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 5: How Courts Can Deal with Preliminary Injunctions from the Perspective of Law & Economics Theory


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Chapter 5:  How Courts Can Deal with Preliminary Injunctions from the Perspective of Law & Economics Theory

§5.1.  Introduction

When faced with a request for a preliminary injunction, how should a preliminary injunction court decide on this and what should be taken into account? This issue will be now addressed, in the light of Law & Economics theory. Law & Economics scholars have come up with different standards on how judges should handle preliminary relief. It is submitted that it is possible to classify the different approaches into two schools of regulation.347 On the one the one hand there are proponents of tight judicial control, believing that the preliminary injunction court is in the best position to decide about the need for interim relief. On the other end of the spectrum there are also scholars opting for a more flexible approach or even liability approach, with markedly a less strong position for the court in deciding on the request to grant a preliminary injunction and on assessing the evidence. Proponents of this school of thought believe that it are the parties that are in the best position to decide on the need for a preliminary injunction.348

We will now look briefly at these different theoretical approaches. At the end of this chapter there is a table in which the main results are also given in a concise overview.349

§5.2.  Tight judicial control in decisionmaking under uncertainty

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