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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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§1.  Introduction

In intellectual property disputes in general – and in patent disputes in particular – injunctions are amongst the most effective and powerful legal measures that can be provided for by a legal system. An injunction is a legal order, given by a court of law, specifically prescribing a particular conduct to be followed or to stop a certain activity. Traditionally, injunctions are granted by a court when monetary remedies do not provide an adequate form of relief. Sometimes, an injunction is combined with a monetary remedy such as damages or restitution of profits. Together, both injunctions and monetary rewards are remedies that can greatly stop, reduce and prevent (the further) infringement of intellectual property rights.1

With respect to injunctive relief specifically in patent disputes, the focus of literature and research tends to be on injunctive relief with a permanent character. These permanent injunctions are granted after the case has been through the normal judicial civil proceedings of a legal system. The case is thus assessed on the merits with ample scope for both the plaintiff (usually the patentee)2 and the defendant (the alleged infringer) to fully present their arguments in the case at hand. Regardless whether appeal at a higher court is still possible and the initial verdict can still be overturned, these injunctions are, at the very least,3 characterised by a significantly higher degree of legal scrutiny than the injunctions that will be at the heart of this research; namely that...

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