This article actually came out about a year ago, but only recently was routed my way, so apologies for the lateness of the post. The author is Léon Dijkman and the title is Does the Injunction Gap Violate the Implementer’s Fair Trial Rights Under the Charter?, 2022 GRUR 857-64. It is a companion article to his previous Does the Injunction Gap Violate the Implementer’s Fair Trial Rights Under the ECHR?, 2021 GRUR Int. 215-27. Here is the abstract:
In a previous article, I examined the so-called ‘injunction gap’ from the perspective of the right to a fair trial enshrined in Article 6 of the European Convention on Human Rights. This article extends the analysis to Article 47 of the European Union’s Charter of Fundamental Rights, which is the EU equivalent of Article 6. The European Court of Justice has applied Article 47 Charter to procedural constellations where issues were divided over different proceedings before different courts. These decisions offer insights for the application of Article 47 Charter to Germany’s bifurcated system of patent proceedings and, in particular, the safeguards that should be afforded to defendants in this system. The article concludes that if the six month period for a qualified opinion by the Federal Patent Court, as per the new § 83 German Patent Act, fails to resolve the injunction gap problem in practice, a stay of proceedings as per § 147 German Code of Civil Proceedings remains the most promising tool to do so.
Although the article was completed before the CJEU’s decision in Phoenix Contact GmbH & Co. KG v. Harting Deutschland GmbH & Co. KG, previously discussed here, the author correctly predicted that the court would find the practice of presumptively denying preliminary injunctions in cases in which the patent’s validity had not been determined in first-instance proceedings at odds with article 9(1) of the Intellectual Property Rights Enforcement Directive. He further proposed that such an outcome would have “two important consequences,” first that it would “require infringement courts to make preliminary assessments of a patent’s validity in interim relief proceedings,” and second that “a greater availability of interim injunctions may make stays of merits proceedings more palatable to infringement courts” since interim relief would still be available “in truly urgent cases” (p.863).