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Preliminary Injunctions in Patent Litigation

Alternative Approaches to Provide Effective Justice under Uncertainty

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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 7: An Overview of National Legal Frameworks and the Practices and Issues Courts Encounter

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Chapter 7:  An Overview of National Legal Frameworks and the Practices and Issues Courts Encounter

The preceding chapter has made clear that obligations from international and European law have set certain minimum standards regarding the procedural and substantive aspects of the preliminary injunction proceedings and the remedy. Nevertheless, they do not stipulate any further how the legal test should be in order to decide on the granting or denying of such a measure. This is left up to the Treaty signatories and Member States of these international and European statutes. We will now look at four examples of these national practices. At first, a look is taken at The Netherlands and at Germany. Subsequently we will look at England and at the United States.

In doing so, the national legal framework governing preliminary injunctions will be reviewed, but also at how courts have interpreted these provisions in practice. Therefore, we will look specifically at patent case law in this chapter which features prohibitively-formulated preliminary injunctions. Most disputes concern either pharmaceutical patents or patents that are related to electronic industries. The cases that are referred to in this chapter are either: 1) cases that are considered to be exemplary of certain practices; 2) cases that are often cited; or 3) cases that form a certain exception to the rule.

§7.1.  The Netherlands

§7.1.1.  Introduction

In the Netherlands, interim relief is made available via the mechanism of a...

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