How Will the European Patent Judges Understand Proportionality?

Abstract

Patent Remedies and Complex Products: Towards a Global Consensus is an excellent piece of scholarly work. It blends comparative and forward-looking analyses that enable rapid understanding of existing legal systems and specific problems, while keeping in mind the original goals of the patent system. In this contribution, I would like to expand on the view that courts in Europe and else-where should increasingly moderate injunctive relief beyond the confines of competition law. Concurring with this view, I will outline (1) why competition law and its framing is only a by-product of European federalism and (2) why the same federalism keeps the Court of Justice of the European Union (CJEU) from having any real impact on patent law remedies, including why proportionality as a concept needs to be clarified.

Keywords: patent law, enforcement, proportionality, EU law

JEL Classification: K2