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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 8: Preliminary Injunctions under the Unified Patent Court; What is known and to be Expected


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Chapter 8:  Preliminary Injunctions under the Unified Patent Court; What is known and to be Expected

§8.1.  Introduction

After the entry into force has been delayed multiple times, the Unified Patent Court is now poised to commence its operations in early 2018.1135 Despite a slow ratification process and the uncertainty that the ‘Brexit’ has on the coming-to-life of the UPC, the project that has been on the drawing board for so long finally seems to become reality. With respect to the consequences of the ‘Brexit’, there seem to be no legal obstacles for the United Kingdom to be on-board1136 and even if the United Kingdom decides to stay at the sidelines at first, the project may still commence, albeit in a different constellation.

Although at the time of writing the exact working and the initial popularity of the Unified Patent Court (UPC) amongst litigants taking this route of dispute resolution is still unclear, the preparatory procedure and corresponding academic debate is long underway. Whilst more and more of details have emerged over the years, nevertheless, it should be said that this chapter is sometimes characterised by a certain degree of speculation with respect to the design and future working of the system. ← 275 | 276 →

§8.2.  Background

Whilst a partial and limited degree of European harmonisation of patent rights has already been achieved in the early 1970’s with respect to the granting procedure of patents rights under...

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