Patent Law Permanent Injunctions and the Reception of Proportionality in the European Union

21 Pages Posted: 11 Apr 2024

See all articles by Rafal Sikorski

Rafal Sikorski

Adam Mickiewicz University - Faculty of Law and Administration

Date Written: March 13, 2024

Abstract

In 2024, the EU Intellectual Property Rights Enforcement Directive turns 20. Its adoption and subsequent implementation by the EU member states has clearly resulted in strengthening the position of the right holders vis a vis infringers. However, the Directive not only obliges the member states to provide for effective and dissuasive procedures, measures, and remedies. It also expressly requires that IPR enforcement be flexible enough so that it does not adversely and disproportionately affects neither infringers, nor third parties or the public. The paper discusses the EU approach to proportionality with respect to permanent injunctive relief in patent cases. It also analyzes how proportionality was received by major patent jurisdictions in the EU and what are the prospects for its application by the Unified Patent Court with respect to European unitary patents as well as traditional European patents. Although, as the paper shows, there is a growing consensus as to when proportionality analysis should result in tailoring or even denying injunctive relief, courts in major EU patent jurisdictions still seem somewhat hesitant about embracing proportionality. The Author proposes that in an attempt to modernize the IPR Enforcement Directive, the EU legislator should consider introducing a set of factors that the courts could look to when deciding whether an injunction is in line with the principle of proportionality. Such a list could not only bring proportionality to the attention of the courts but also be used to provide guidance for the judges adjudicating in patent disputes and ultimately provide more certainty to the market participants.

Keywords: permanent injunctions, proportionality, patent law, patent enforcement, enforcement directive

JEL Classification: K29

Suggested Citation

Sikorski, Rafal, Patent Law Permanent Injunctions and the Reception of Proportionality in the European Union (March 13, 2024). Available at SSRN: https://ssrn.com/abstract=4758490 or http://dx.doi.org/10.2139/ssrn.4758490

Rafal Sikorski (Contact Author)

Adam Mickiewicz University - Faculty of Law and Administration ( email )

Poland

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
68
Abstract Views
239
Rank
627,960
PlumX Metrics