Injunctions and Flexibility in Patent Law

According to the traditional doctrine in many Continental European jurisdictions, the patent owner has an unqualified right to an injunction in the case of an infringement. In US law, on the contrary, in the aftermath of eBay v. MercExchange, it has become difficult, at least for non-practicing entities, to obtain injunctive relief. Under EU law, injunctions must be available, but only subject to the principle of proportionality.
In some areas there is a growing consensus that injunctive relief may have to be restricted. When owners of standard-essential patents (SEPs) make FRAND commitments, they are under a duty based on contract or antitrust law to grant licences accordingly. The owner of a patent to a second medical use cannot prohibit the sale of the substance as such, but restricting injunctions to infringing acts may turn out to be a challenge.

The speakers of this conference are experienced judges, academics and lawyers from Continental Europe, the UK, the US and Asia. They will look into the economic and historical background and will discuss the impact of the proportionality principle. The second day of the conference will be dedicated to specific issues of both doctrinal and practical relevance.
Should injunctions be drafted as specific orders or as general obligations? Does the general duty to abstain from infringements also extend to a duty to recall? How should injunctions be drafted in cases involving second medical use claims? Is there an emerging international consensus on how to deal with FRAND cases?

 

---

back