My university's library recently received a copy of Transitions
in European Patent Law: Influences of the Unitary Patent Package
(Rosa Maria Ballardini, Marcus Norrgård & Niklas Bruun eds., Kluwer Law
International 2015). Part IV is titled Enforcement and Procedural
European Patent Law, and includes chapters by Kelli Larson titled Enforcement:
Legal Implications of the European and Unitary Patent Systems for
Non-practicing Entity Patent Enforcement in Europe, and by Marcus Norrgård
and Alicia Nylund titled The Requirements for Preliminary Injunctions in the
Unified Patent Court. Ms. Larson's chapter provides a interesting
discussion of factors that cut both for and against the prediction that the new
system will make Europe more NPE-friendly, while the chapter by Professor Norrgård
and Ms. Nylund contrasts the UK approach to preliminary injunctions (involving
something of a balancing inquiry) with the German approach (involving more of a
prediction as to likelihood of harm). Norrgård and Nylund note that the
relevant legal documents relating to the UPC do not clearly specify which
approach the UPC should take toward preliminary injunctions, and they argue in
favor of an approach (patterned after frameworks developed by Professor John
Leubsdorf and Judge Richard Posner) that they refer to as "inverse
sequential," which would begin "by weighing the interests of the
parties, which in turn would define the standard of proof required. In
short, the graver the consequences for the plaintiff compared with the
defendant's consequences, the lower the threshold for a preliminary injunction,
and the other way around: the greater the harm to the defendant (compared
to the plaintiff's), the higher the threshold." Interesting reading.
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