News on Injunctions

1.  Citing Lex Machina's recently released Patent Litigation Report 2019 (which I plan to say about in a forthcoming post), Ryan Davis recently published an article on Law360 titled Patent Injunctions Drop Sharply in 2018.  According to the article, U.S. courts granted 17 permanent injunctions in patent cases last year and denied 9.  (There were also "134 injunctions issued on consent judgments.")  By comparison, in 2017 there were 36 grants and only 3 denials (along with 184 issued on consent judgments).  As for preliminary injunctions, in 2018 there were 8 grants and 23 denials ("compared to nine granted and 41 denied the year before").  The numbers for permanent injunctions surprise me a bit, since (until recently, I guess) most of the empirical studies reported that the ratio of grants to denials was holding steady at about 75%--though if you average out 2017 and 2018,  you get a grant rate of just over 80% (not counting the consent judgments).  Moreover, things can vary from one year to another.  And, as one Mr. Davis's interviewees noted, there is probably something of a self-selection effect; if you know the odds of getting an injunction are low, you may not waste time and money on a losing effort.  

2.  Nadine Herrmann has published an article titled Injunctions in Patent Litigation Following the CJEU Huawei v. ZTE Ruling (Germany), 9 J. Eur. Competition L. & Prac. 582 (2018).   Hat tip to Professor Danny Sokol for calling this to my attention on the Antitrust Law & Policy Blog.   The article provides a good overview of how the German courts have interpreted or are likely to interpret the procedural requirements of the Huawei case.

3.  The Kluwer Patent Blog published a short interview with Professor Rafal Sikorski, in an article titled 'eBay decision has led to much better understanding of how injunctions affect markets'.  Professor Sikoski discusses the rationale for conferring discretion on courts to deny injunctions in certain types of cases, and observes that such flexibility is at present available in some countries by way of equity, competition law, or the abuse of rights doctrine.  As the article notes, Professor Sikorski recently published an edited volume titled Patent Law Injunctions; and as I noted in my blog post on the book a few weeks ago, he's also the coauthor of two chapters in the forthcoming Patent Remedies and Complex Products:  Towarda Global Consensus (Brad Biddle, Jorge L. Contreras, Brian J. Love & Norman V. Siebrasse eds., Cambridge Univ. Press), to which I also contributed some material.