Monday, November 23, 2020

Some Recent Works on Injunctions and Related Issues

1.  Tomas Gomez-Arostegui and Sean Bottomley have posted a paper on ssrn titled The Traditional Burdens for Final Injunctions in Patent Cases c.1789 and Some Modern Implications, __ Case Western Reserve Law Review __ (forthcoming).  Here is a link to the paper, and here is the abstract:


This Article reassesses the first two eBay factors for final injunctions—irreparable injury and the inadequacy of legal remedies—in light of traditional equitable principles. Tracking most closely with tradition would require the Federal Circuit to recognize that: (1) an injury it seeks to redress with a final injunction is future infringement itself, not just follow-on harms caused by future infringement; (2) it can presume future infringement from past infringement; (3) it can presume that legal remedies are inadequate to remedy future infringement; and (4) it need not require a plaintiff to show that alternative equitable remedies, like ongoing royalties, would inadequately redress future infringement. Moreover, the Federal Circuit can recognize, without relying on presumptions, that the burden on the first two eBay factors is not onerous. A patentee can satisfy them by showing that a defendant is likely to infringe again and that any legal damages awarded at trial did not fully compensate the patentee for the life of the patent.

2. Rik Lambers published a post on the Kluwer Patent Blog titled The Dutch Cross-Border Still Going Strong: Novartis v Mylan, discussing a Dutch court's recent grant of a cross-border injunction as previously noted here (para. 2).

3.   On IP Watchdog, Judge Paul Michel (Ret.) and John Battaglia published an article titled The Price of Paice and Complexity:  Rules, Standards and Facts for Post-Judgment Royalty Consideration.  The authors discuss the factors that courts currently are applying in deciding the appropriate amount of a postjudgment, ongoing royalty in lieu of an injunction.  They argue that there should be no presumption that the postjudgment rate should be the same as the prejudgment rate, a thesis which in my view makes no economic sense.  See, e.g., here.

4.  Norman Siebrasse published a post on Sufficient Description titled Variation of Injunction Refused, discussing a recent decision of Canada's Federal Court in Bombardier Recreational Products Inc. v. Arctic Cat, Inc., 2020 FC 946.  The post argues that Canadian courts should be more willing than this decision suggests they currently are to consider staying (or tailoring) permanent injunctions for a period of time, for example to enable the defendant to design around.  (This option is, as some readers may be aware, also at issue in the context of a proposed amendment to Germany's patent law.)  Professor Siebrasse also mentions a forthcoming edited volume on the comparative law of tailored injunctions, which should be out sometime in the spring.

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