Some Recent Discussion of Preliminary Injunctions in the EU

1.  Christian Le Stanc recently published a short commentary titled Que fair contre les méchants «patent trolls»? (“What to about patent trolls?’”), Propriété Industrielle, Sept. 2023, pp. 1-2.  The commentary notes a written question submitted earlier this year by French MP Christophe Blanchet to the Minister of Justice, posing this very question, i.e., “If and how the government intends to act to better protect rightsholders and operating companies against the rogue utilization of the courts, specifically in guaranteeing an effective and harmonized application of the proportionality principle in constraining the automatic grant of injunctions at the national and European level, and within what time frame” (my translation from the French).  Dr. Le Stanc characterizes the government’s response as “Rien” (nothing).  More specifically, the government’s response notes that the rules are intended to assure a balance between rightsholders and other parties; and states that French and EU law, including IPRED and the UPA, are such as to confine the harmful activities of “patent hunters.”  Dr. Le Stanc appears to have been hoping for something a bit more forceful, and states that under the proportionality principle it would be legitimate to award patent trolls only a reasonable royalty, rather than an injunction.  (For the submitted question and response, see here.)

2. Léon Dijkman published a post on IPKat titled What is the standard for preliminary injunctions before the UPC?   The post notes the recent decision of the UPC Munich awarding a 10x Genomics a preliminary injunction against Nanostring (pending motion previously noted here; English-language translation of the decision available from Tilman Müller-Stoy on EPLaw here).  The author states that the court articulated a “two-fold necessity argument” comprising both urgency and threatened harm to the patentee; the latter may take into account such factors as price erosion, market erosion, and the products’ life cycles. The author also notes some possible ambiguity over how the balance of interests fits in, but reads the decision as requiring consideration of this factor (that is, whether the patentee’s interest in obtaining interim relief outweighs the infringer’s interest in avoiding it), and that ownership of a patent that is likely infringed and valid (following some preliminary assessment of validity) can tilt the balance in favor of the patentee.  In addition, the court considered the defendant’s proportionality argument, but found it lacking for various reasons (and considered the patentee’s status as an NPE immaterial).  For additional discussion of 10x v. Nanostring, see Konstanze Richter’s write-up on JUVE Patent and another here by Dr. Julia Traumann Emmanuel Gougé.  Also, as noted by Dr. Dijkman and as discussed in a recent post on the Kluwer PatentBlog, 10x failed to obtain a second UPC preliminary injunction against Nanostring, apparently for lack of sufficient evidence of infringement and validity of the patent in suit in that case.  And even more recently, Tilman Müller-Stoy published an illuminating post on EPLaw titled UPC–10x Genomics/Harvard v NanoString, discussing both preliminary injunction proceedings.

3. Rik Lambers published a post on the Kluwer Patent Blog titled Status Quo Vadis?  The post discusses a Dutch decision granting a “status quo injunction,” which the author describes as “preliminary relief in preliminary relief proceedings,” which was then followed by an actual preliminary injunction against Teva’s marketing a generic version of a drug owned by Grünenthal (despite a broader version of the claim in suit having been invalidated in Germany and the U.K.)

4.  On JUVE Patent, Konstanze Richter published a post titled UPC imposes penalty payment on Revolt in e-bike dispute with MyStromer.  The post discusses a follow-up proceeding to what was the UPC’s first ex parte decision this past June (previously noted here).  According to the post, the court “imposed a penalty payment totaling €26,500,” which “is mainly due to the German dealer offering the [accused] bikes for sale in September.”