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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 6: International and European Obligations and Preliminary Injunctions


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Chapter 6:  International and European Obligations and Preliminary Injunctions

§6.1.  Introduction

As will be seen, preliminary injunctions have their roots in three different levels of legislation: on the international level, for European countries on the European (and EU) level and, last but not least, they also have a basis in the national legal frameworks of individual states. This chapter focusses on the obligations stemming from International Law and European (Union) law. Subject to review here are the following sources of law: the TRIPS Agreement, the EU Enforcement Directive, the European Convention of Human Rights and the Brussels Regulation. The former two sources were specifically drafted for intellectual property law enforcement. Whilst the latter two are not, they without a doubt also have effect on litigation in this area. All the sources of law mentioned in this chapter remain of relevance with the start of the UPC Agreement.

§6.2.  The international level: the TRIPS Agreement

The United States and the predecessor of the EU, the European Community, have pushed for a common minimum of protection of intellectual property at the International Law level. They did so already at the time of early GATT-TRIPS443 negotiations at the end of the 1980s and in the early 1990s.444 The signatories of TRIPS, namely Members of the World Trade Organisation (WTO) – now encompassing most nations in the world – have thereby agreed on common principles and minimum standards for the protection of intellectual property...

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