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Interim Injunctions in Europe, a bief overview

Interim Injunctions in Europe, a bief overview. Severin de Wit AIPLA Mid Winter Meeting, La Quinta, CA February 1, 2006. AIPLA meeting subjects. Major patent jurisdictions in Europe: UK, Germany, The Netherlands, France, Italy, Sweden each jurisdiction: own rules of proceedings

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Interim Injunctions in Europe, a bief overview

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  1. Interim Injunctions in Europe, a bief overview Severin de Wit AIPLA Mid Winter Meeting, La Quinta, CA February 1, 2006

  2. AIPLA meeting subjects • Major patent jurisdictions in Europe: UK, Germany, The Netherlands, France, Italy, Sweden • each jurisdiction: own rules of proceedings • injunctive relief available in most major jurisdictions • variations on a country-by-country basis • EU Enforcement Directive (To be implemented by 29 April 2006) • (Directive 2004/48/EC of the European Parliament and of the Council of 29 april 2004 on the Enforcement of Intellectual Property Rights)

  3. EU Enforcement Directive (2004) • Directive 2004/48/EC of the European Parliament and of the Council of 29 april 2004 on the Enforcement of Intellectual Property (OJ June, 2 2004, L 157, p. 45) • Harmonisation of civil law measures, procedures and remedies • Article 9:1. Member States shall ensure that the judicial authorities may,at the request of the applicant:(a) issue against the alleged infringer an interlocutory injunction intended to prevent any imminent infringement of an intellectual property right, or to forbid, on a provisional basis and subject, where appropriate, to a recurring penalty payment where provided for by national law, the continuation of thealleged infringements of that right (…)

  4. EU Enforcement Directive 2004/48: An overview • Provisional injunction against alleged infringer and intermediaries • Seizure of suspected goods to prevent entry into market • Blocking of bank accounts and assets, in urgent cases ex parte, subject to security for possible damage by defendant • Seizure and injunctions in urgent cases without other party having been heard, subject to security for possible damage by defendant • Injunction and seizure revoked if not followed by action on merits within 20 working days

  5. Common requirements throughout EU • Urgent interest • Minimum burden of proof • Minimum grounds in the decision • Limitation of the injunction (no monetary relief)

  6. Variations in injunctive relief • Inter parte vs. ex parte • Injunctive relief vs. action on the merits • Fumus boni iuris and periculim in mora • Scope of the injunction

  7. Capita Selecta: Germany • ‘Einstweilige Verfügung” • One of the few jurisdictions with ex parte injunctive relief (common in soft IP, not in patent cases) • Urgent interest: only 1 or 2 months after discovery of infringement • Substantive requirement (patents): relatively straight and solid patent, relatively straight and clear infringement • No requirement vis-à-vis action on the merits

  8. Capita Selecta: France • “Référé” • Requirement of action on the merit before injunctive relief • Inter partes only (has to be amended) • Formal requirement: irreparable harm • In patent matters: restricted jurisdiction (10 patent courts throughout France) • In patent matters: rare use (only 2% of the cases)

  9. Preliminary Injunctions in France Source: Pierre Veron

  10. Capita Selecta: The Netherlands • “Kort Geding” • Inter partes only (changes pending) • All patent cases before the Dutch Court of The Hague • Easy test on urgent interest (up to 6 months after discovery of infringement) • Substantive requirement (patents): relatively straight and solid patent, relatively straight and clear infringement • In patent matters: regular use (almost 50%) • Obligation to start action on the merits within max. 6 months

  11. Capita Selecta: The Netherlands (2) • How about cross-border injunctions? • Court of The Hague still favours cross-border injunctions, especially in injunctive relief. • However, some hesitation since A-G opinions of Geelhoed and Léger in the GAT-LuK and Roche/Primus cases, both pending before the ECJ • …..

  12. Capita Selecta: UK • The principal form of preliminary relief in patent cases: interim injunction • Ex parte (inaudita altera parte) applications • Civil Procedure Rules (“CPR) Rule 23 a number of other forms of relief are listed: • orders for the detention, custody, inspection, preservation or sale of relevant property, • interim declarations, search orders and orders for interim payments.

  13. Capita Selecta: UK (2) • American Cyanamid rules: • Basic principle: • Inappropriate to decide merits at outset of action … • … so consider who will suffer least harm • Primary remedy for wrongs is damages • Merits: claimant need only show arguable case • Damages or irreparable harm? • Will either party suffer loss for which damages will not compensate him if he loses now but wins at trial? • “Balance of convenience” - balance of risk of injustice

  14. Capita Selecta patent matters: UK (2) • American Cyanamid rules cont’d: • No early indication of merits • Delay • Reduces credibility of “irreparable harm” • Status quo • Quia timet - pre-launch applications • Cross-undertaking in damages • if Patentee loses at trial, must compensate defendant for loss caused by injunction.

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